CIHM 
Microfiche 
Series 
({Monographs) 


ICIMH 

Collection  de 
microfiches 
(monographles) 


Canadian  Inatituta  for  Hiatorical  Microraproductions  /  Institut  Canadian  da  microraproductiona  hittoriquaa 


Technical  and  Bibliographic  Notes  /  Notes  techniques  et  bibliographiques 


I 
•'I 


The  Institute  has  attempted  to  obtain  the  best  original 
copy  available  for  filming.  Features  of  this  copy  which 
may  be  bibliographically  unique,  which  may  alter  any  of 
the  Images  in  the  reproduction,  or  which  may 
significantly  change  the  usual  method  of  filming  are 
checked  below. 


D 
D 
D 


D 
D 
D 
D 
D 


I    D 


Q 


Coloured  covers  / 
Couverture  de  couleur 

Covers  damaged  / 
Couverture  endommag^e 

Covers  restored  and/or  laminated  / 
Couverture  restaurde  et/ou  peliicul^e 

Cover  title  missing  /  Le  titre  de  couverture  manque 

Coloured  maps  /  Cartes  gdographiques  en  couleur 

Coloured  ink  (i.e.  other  than  blue  or  black)  / 
Encre  de  couleur  (i.e.  autre  que  bleue  ou  noire) 

Coloured  plates  and/or  illustrations  / 
Planches  et/ou  illustrations  en  couleur 

Bound  with  other  material  / 
Reli^  avec  d'autres  documents 

Only  edition  available  / 
Seule  Edition  disponible 

Tight  binding  may  cause  shadows  or  distortion  along 
interior  maryin  /  La  reliure  serr^e  peut  causer  de 
I'ombre  ou  de  la  distorsion  le  long  de  la  marge 
int^rieure. 

Blank  leaves  added  during  restorations  may  appear 
within  the  text.  Whenever  possible,  these  have  been 
omitted  from  filming  /  Use  peut  que  certaines  pages 
blanches  ajout^es  lors  d'une  restauration 
apparaissent  dans  le  texte,  mais,  lorsque  cela  ^lait 
possible,  ces  pages  n'ont  pas  ^t^  f  ilm^es. 


L'Institut  a  microfilm^  le  meilleur  exemplaire  qu'il  lui  a 
6t6  possible  de  se  procurer.  Les  details  de  cet  exem- 
plaire qui  sont  peut-6tre  uniques  du  point  de  vue  bibli> 
ographique,  qui  peuvent  nrKXlifier  une  image  reproduite. 
ou  qui  peuvent  exiger  une  modification  dans  la  m^tho* 
de  nomfiale  de  filnrage  sont  indiqu^s  ci-dessous. 

]  Coloured  pages  /  Pages  de  couleur 

I     I  Pages  damaged  /  Pages  endommag^es 

D 


Pages  restored  and/or  laminated  / 
Pages  restaur^es  et/ou  pelliculdes 


I — y  Pages  discoloured,  stained  or  foxed  / 
L^d  Pages  dteolor^es,  tachet^es  ou  piqu4es 

I     I  Pages  detached  /  Pages  d^tach^es 

I  \/|  Showthrough  /  Transparence 

I     I  Quality  of  print  varies  / 


D 
D 


D 


Quality  in^gale  de  I'impression 

Includes  supplementary  material  / 
Comprend  du  materiel  suppl^mentaire 

Pages  wholly  or  partially  obscured  by  errata  slips, 
tissues,  etc.,  have  been  refilmed  to  ensure  the  best 
possible  image  /  Les  pages  totalement  ou 
partiellement  obscurcies  par  un  feuillet  d'errata,  une 
pelure,  etc.,  ont  i\6  filmies  k  nouveau  de  fa^on  k 
obtenir  la  meilleure  inr^ge  possible. 

Opposing  pages  with  varying  colouration  or 
discolourations  are  filmed  twice  to  ensure  the  best 
possible  image  /  Les  pages  s'opposant  ayant  des 
colorations  variables  ou  des  decolorations  sont 
film^es  deux  fois  afin  d'obtenir  la  meilleure  image 
possible. 


Additional  comments  / 
Commentaires  suppl^mentaires: 


Various  pagings. 


This  item  is  filmed  at  the  reduction  ritio  checked  below  / 

Co  document  est  filmi  au  teux  de  reduction  indiqui  cl-dessout. 

lOx                             14x                            18x 

22x 

26x 

30x 

y 

12x 


16x 


20x 


24x 


28x 


32x 


TiM  copy  filmsd  h«r«  has  bMO  raproduMd  thanlM 
to  th«  gwMretlty  of: 

National  Library  of  Canada 


L'axampiaira  filmi  fut  raproduit  grica  A  la 
g4n4reait*  da: 

Bibllothiqua  nationala  du  Canada 


Tha  imagaa  appaaring  hara  ara  tha  baat  quality 
poaaibia  conaidaring  tha  condition  and  lagibility 
of  tha  original  eopy  and  in  kaaping  with  tha 
fiiming  eontraet  apacificationa. 


Original  copiaa  in  printad  papar  eevara  ara  filmad 
boginning  with  tha  front  covor  and  anding  on 
xhm  laat  paga  with  a  printad  or  illuatratad  impraa* 
aion.  or  tho  back  covar  whan  appropriata.  All 
othor  original  copiaa  ara  filmad  baginning  on  tha 
first  paga  with  a  printad  or  illuatratad  impras- 
sion.  and  anding  on  tho  laat  paga  with  a  printad 
or  illuatratad  imprasaion. 


Laa  imagaa  suivantaa  ont  it*  raproduitas  avac  la 
plus  grind  soin.  eompta  tanu  da  la  condition  at 
do  la  nattat*  da  I'aaamplaira  film*,  at  •» 
eonformM  avac  laa  eonditiona  du  contrat  da 
filmaga. 

Laa  axamplairaa  origirtaux  dont  la  couwartura  an 
papiar  aat  imprimOa  sont  filmas  an  commandant 
par  la  pramiar  plat  at  •n  tarminant  soit  par  la 
darniAra  paga  qui  comporta  una  amprainta 
d'impraaalon  ou  d'illuauation.  soit  par  la  sacond 
plat,  salon  lo  eas.  Tous  laa  autras  aaamplairaa 
originaua  aont  filmia  an  eommoncant  par  la 
pramiira  paga  qui  comporta  una  amprainta 
d'impraaalon  ou  d'iiluatration  at  9n  tarminant  par 
la  darniira  paga  qui  eomporto  uno  talla 
amprainta. 


Tha  laat  racordad  frama  on  aach  microficho 
shall  contain  tha  symbol  -^  (moaning  "CON- 
TINUED"), or  tha  symbol  ▼  (moaning  "END"). 
whichawar  appliaa. 

Maps,  platas.  charu,  ate.  may  ba  filmad  at 
diffarant  raduction  ratios.  Thosa  too  larga  to  ba 
antiraly  includad  in  on«  axposura  ara  filmad 
baginning  in  tha  uppar  laft  hand  cornar.  laft  to 
right  and  top  to  bonom,  as  many  framas  as 
raquirad.  Tha  following  diagrams  illustrata  tha 
mathod: 


Un  daa  symbolos  suivanta  apparaitra  sur  la 
darniira  imaga  da  chaqua  microfiche,  salon  la 
caa:  la  symbols  — »>  signifia  "A  SUIVRE".  la 
symbolo  ▼  signifia  "FIN". 

Laa  cartaa.  planchaa.  ubiaaux.  ate.  pauwant  itra 
filmOs  A  daa  taux  da  rOduction  diffOrants. 
Lorsqua  la  documant  aat  trap  grand  pour  atra 
raproduit  9n  un  saul  clichO.  il  ast  filmO  A  partir 
da  I'angla  supiriaur  gaucha.  da  gaucha  i  droita, 
at  da  haut  mn  baa.  an  pranant  la  nombra 
d'imagaa  nteassaira.  Laa  diagrammaa  suivants 
illuatrant  la  mOthodo. 


1 

2 

3 

1 

2 

3 

4 

5 

6 

MICROCOPY   RKOUiTION   TBT  CHAIT 

(ANSI  and  ISO  TEST  CHARf  No   2) 


Li  |2j8 

■  2J 

Itt  . 

l^ 

Hi,  iSi 

■  2.2 

•fl. 

Ih 

£  lis 

12.0 

u 

u   . 

■IkS 

1 

11.8 

1.6 


^ 


/APPLIED  IM/iGE    In 

1653  East   Main   Str^t 

Roch»sttf.    N»w   York  1*609        USA 

(716)   482  -0300  -Phone 

(716)   286-  5989  -  Fok 


K 


RESOLUTIONS 

OF    THE 

INSTITUTE  OF 
INTERNATIONAL  LAW 


7' 


Carnegie   Endowment   for   International   Peace 

DIVISION  OF  INTERNATIONAL  LAW 


RESOLUTIONS 

OF  THE 

INSTITUTE  OF 
INTERNATIONAL  LAW 

DEALING  WITH  THE  LAW  OF  NATIONS 

WITH  AN  HISTORICAL  INTRODUCTION 
AND  EXPLANATORY  NOTES 


COLLECTED  AND  TRANSLATED  UNDER  THE  SUPERVISION  OF 
AND  EDITED  BY 

JAMES  BROWN  SCOTT 

DIEECTOB 


NEW  YORK 
OXFORD  UNIVERSITY  PRESS 

AMERICAN  BRANCH:  ts  Wm  Mm  Snm 

LONDON.  TORONTa  MELBOURNE.  AND  BOMBAY 
HUMPHREY  MILFORD 

1916 


jyu 


IS 


coPTRionT  tnt 

■T  TIB 

CARNBOIB  BKDOWMltNT  FOR  INTERKATIONAL  riACB 

WAiMiiiaToii,  D.  0. 


Tti*    QUtlDI    A    MMH    CO-    Mtn 
lUMWAT,   ■■   i. 


PREFACE 

For  •oni«  ye»n  pMt  it  has  been  difficult  to  obtain  copiei  of  th« 
Annuairg  of  the  Institute  of  International  Law,  becauie  only  a  rela- 
tively imall  number  was  iwucd ;  and  the  voluraci,  being  valuable  to 
•tudenti  and  practitioners  of  international  law,  have  long  since  dis- 
appeared from  the  market.    To  cite  a  concrete  instance,  the  Carnegie 
Endowment  for  International  Peace  has  tried  and  tried  in  vain  to 
acquire  by  purchase  several  numbers  of  the  Annuaire  in  order  to 
complete  its  set,  and,  although   it  placed  order,  with  responsible 
dealers  five  years  ago,  it  has  not  yet  been  able  to  procure  the  volumes. 
As  this  experience  might  be  matched  by  the  experience  of  l,br.n« 
and  of  persons  interested  in  international  law,  it  has  been  decided 
to  re-roduce  in  handy  and  convenient  form  the  resolutions  of  the 
Institute  of  International  Law  dealing  with  international  law  which 
it  has  framed  and  adopted  during  the  forty  years  of  •;•""«•[" 
and  beneficent  existence  since  its  organization  in  1878.    The  member, 
of  the  Institute  themselves   have   felt   the   need  of   re.ssu.ng  the 
Annuaire.  and  on  two  occasions,  namely,  in  1894  and  .n  1904,  pu^ 
lished  collections  of  the  resolutions:  the  first  dealmg  w.th  those  from 
the  organization  until  1894,  and  the  latter  contain.ng  th«;"°l"»J' 
for  the  following  decade.     The  Tableau  GHiral    .ssued  m  1894, 
forms  a  separate  volume;  the  Tableau  Dicennal  form,  the  last  part 
of  the  Annuaire  for  1904. 

It  has  been  stated  that  the  resolutions  of  the  Inst.tute  are  of 
great  service  to  student,  and  practitioners  of  intemat.onal  law,  jo 
that  their  collection  and  publication  in  a  convenient  volume  would  be 
in  the  nature  of  a  public  service.  In  justification  of  thi.  «™"|'.  »» 
examination  of  almo.t  any  treatise  on  international  law  publuhed 
since  the  organization  of  the  Institute  would  show  the  d^^P^^ence  of 
teachers  and  students  upon  its  resolutions.  But  men  of  -ff^'"'  »«>' 
have  referred  to  the  resolutions  and  have  accepted  them  as  authority 
and  pressed  their  acceptance  upon  foreign  governments  m  .nter- 
national  controversies.  From  many  examples,  one  w. 11  suffice^  In 
the  correspondence  with  Guatemala  concerning  the  expulsion  of  Mr. 


ff 


y{  Preface 

Hollander,  an  Am«ri«n  ciliicn,  Mr.  Rich*rd  Obey,  then  SecreUry 
of  Stale  of  the  United  State,  quoted  and  relied  upon  the  rewlutioni 
of  the  Inititute  of  Internal,  .ml  Law  concerning  the  right  of  a 
government  to  expel  aliens  from  it.  mid.t  and  the  condition*  to  which 
•uch  expuliion  ihould  be  »ubjccled.' 

In  international  arbitration!,  the  reiolutioni  of  the  Inititute  hava 
been  invoked  and  relied  upon  by  arbitrator,  in  reaching  dcci.ion.  and 
have  been  quoted  extcn.ivcly  a.  authorities  in  their  award..  A  .ingle 
instance  of  thi.  mu.t  .uffice;  and  in  view  of  the  many.  »»«  »**™  "J 
Raliton,  umpire,  in  the  Buffolo  ca.c,  may  be  cited,  in  which  that 
di.tingui.hed  juri.t  ho.ed  hi.  judgment  upon  the  rcolution.  of  the 
In.titute  of  International  Law.» 

But  it  i*  not  alone   in  treati.e«  on   international  law,  m  the 
diplomatic  corre.pondence  of  nation.,  and  in  the  adju.tment  of  con- 
trover.ie.  by  arbitration  that  the  resolution,  of  the  In.titute  have 
been  u.ed  a.  authoritie..    A  di.tingui.hed  American  .tate.man,  whom 
Pre.ident  Roccvelt  con.idcrcd  to  be  the  ablt.t  man  in  public  life  in 
thi.  or  any  other  country,  ha.  repeatedly  referred  to  the  re.olutirn. 
of  the  In.litute  a.  furnishing  the  framework  of  variou.  convention, 
of  the  Fir.t  and  Second  Hague  Peace  Conference..     And  of  thew 
many  references  one  alone  can  be  quoted,  to  the  effect  that  "  in 
practice  the  work  of  the  unofficial  members  of  the  Institute  of  Inter- 
national Law  has  made  possible  the  success  of  the  official  conference, 
at  The  Hague,  by  preparing  their  work  beforehand  md  agreeing 
upon  conclusions  which  the  official  conferences  could  accept."    Thi. 
quotation  ha.  been  taken  purposely  from  Mr.  Root',  addres.  on 
Francis  Liebcr,»  delivered  before  the  American  Society  of  Interna- 
tional Law  in  1913,  because  in  this  address,  from  which  the  other 
quotations  in  this  preface  are  likewise  taken,  Mr.  Root  show,  that 
the  proposal  to  establish  the  Institute  was  due  to  the  distinguished 
German  publicist  whose  liberal  sentiments  exiled  him  from  the  land 
of  his  birth,  but  made  him  a  welcome  guest  in  the  United  States,  of 
which  he  became  a  citizen  by  naturalization,  and  whose  abilities  and 
achievements  reflect  credit  upon  both  countries.     In  a  letter  written 

MtfToiney.  Secretarv  of  State,  to  Mr.  Young.  Minister  to  Guatemala.  Jan- 

uary  30,  1896.  Foreign  Relation   of  th»    UniUd  Statti.  1805.  pt.  li.  p.  7T5» 
Moore's  InUrnational  Lav  Digest,  vol.  4,  p.  102  «(  teq. 
'  Halsti>n.  Vtnezutlan  Arbitraiioiu  of  1903.  p.  696. 
»  America*  Journal  of  International  Law.  1913,  vol.  7.  pp.  453,  464-5. 


Preface 


Ttt 


on  April  16.  1866,  to  hii  friend  BIuntKhli,  then  professor  of  inter- 
national law  at  Heidelberg,  Dr.  Liebcr  laid: 

For  a  long  time  it  wai  a  favorite  prnjrrt  of  mine  that  four 
rr  fltc  of  the  mo.t  di.tingui.hcd  juries  .hould  hold  a  congrcM 
in  order  to  decide  on  .cvcral  important  but  .t.U  unsettled  que- 
tiont  of  national  equit.  and  perhaps  draw  up  a  code.  First  I 
proposed  that  it  should  be  an  official  congress,  under  the  govern- 
ment .  .  .  But  after  awhile  it  became  clear  to  mc  that  it  would 
be  much  better  if  a  private  congress  were  established,  whose 
work  would  stand  as  an  authority  by  its  excellence,  truthful- 
ness, justice,  and  superiority  in  every  respect. 
And  again  in  a  letter  <lated  December  15,  1866,  to  our  distin- 
guished countryman,  Andrew  D.  White,  he  wrote: 

I  fancy  sometimes— but  only  fancy— how  fine  a  thing  it 
would  be  for  one  of  the  Peabodies,  or  some  -"•^^  gold  vessel,  to 
ffivc.  say  twenty-five  thousand  dollars  gold,  for  the  holding  of 
a  privatc-i.r  not  diplomatic,  although  international-congress 
of  some  eight  or  ten  jurists,  to  concentrate  international 
authority  and  combined  weight  on  certain  great  points,  on  which 
we  have  now  only  individual  authorities.  I  have  spoken  about 
this  years  ago  to  Mr.  Field.' 
A  little  later,  in  a  letter  of  May  7, 1869,  to  Judge  Thayer,  he 

•aid : 

The  strength,  authority,  and  grandeur  of  the  law  of  nations 
rests  on,  and  consists  in,  the  very  fact  that  reason,  justice, 
equity,  speak  through  men  "  greater  than  he  who  takes  a  city 
—single  men,  plain  Grotius;  and  that  nations,  and  even  Con- 
ffresses  of  Vienna,  cannot  avoid  hearing,  acknowledging,  and 
quoting  them.  But  it  has  ever  been,  and  is  still,  a  favorite  idea 
of  mine  that  there  should  be  a  congress  of  from  five  to  ten  ac- 
knowledged jurists  to  settle  a  dozen  or  two  of  important  yet 
unsettled  points— a  private  and  boldly  self-appointed  congress, 
whose  whole  authority  should  rest  on  the  inherent  truth  and 
energy  of  their  own  proclama.' 

The  idea  was  what  might  be  called  an  obsession  with  this  distin- 
guished publicist,  but  it  was  destined  to  take  definite  form  and  shape. 
In  a  letter  of  April  10,  1872,  to  General  Dufour,  of  Switzerland, 
Lieber  wrote : 
~^Tii7Lif»  and  L«tUr$  of  FrancU  Lithtr  (Perry,  ed.),  p.  363. 

•  Ibid.,  p.  367, 

•  md.,  p.  391. 


vui  Preface 

One  of  far  tbe  most  effectual  and  beneficent  things  that,  at 
this^rv  iuncture,  could  be  done  for  the  promotion  of  the  inter- 
course ^f  nations  in  peace  or  war  (and  there  is  tntercaune  in 
war   since  man  cannot  meet  man  without  Intercourse) -one  of 
r  m^t  pr^^ising  things  in  matters  ofinternationahsm  w^^^^^^ 
L  the  meeting  of  the  most  prominent  jurists  of  the  law  oi 
nltions.  ofTu?  Ciscaucasian  ^ace-one  from  each  country,  in 
"^hiirindividual  and  not  in  any  public  capa;^ty-to  -^He  among 
♦hpmselves  certain  great  questions  of  the  law  of  nations  as  y« 
unsTttled    such  as  neutrality,  or  tbe  aid  of  barbarians,  or  the 
r^it  on  of  the  claims  or  obligations  of  citizenship.     I  mean 
S  as^GroUus  .i^I^^.-by  thf  strength  of  the  g-t  "gum-t 
of  iustice.    A  code  or  proclamation,  as  it  were,  of  such  a  body, 
woi?d    c^n  acquire  fa?  greater  authority  than  the  book  of  the 
g^atest  single  jurist.    I  hope  such  a  meeting  may  be  brought 
about  in  IS?*.* 

It  was  brought  about  a  year  earlier,  but  the  great  and  good  man 
had  passed  away,  as  so  often  happens  in  this  world  of  ours  before 
Ws  idea  hi  taken  visible  form  and  shape.  His  leadership,  however, 
t  the  matter  is  recognized.    Thus  his  friend  Bluntschh  wroe : 

Lieber  had  great  influence,  I  may  add,  «, '?"n^{"8/^^ 
Jn^titTL  Dr  J  International,  which  was  started  m  Ghent  in 

~^?^vS=L;l!r;^^;»9S 

rls^h  a  common  understanding.     From  this  -pulse  pro- 
ceeded Rolin-Jaequemyns'  circular  1««"' f  ^^  "P/J^S!; 
callinff  toeether  a  number  of  men  emment  fort^eir  learning. 
This  ktteTproposal  to  found  a  pernmnent  academy  for  tnter. 
J^MlaJ^^e\.'.ih  general  acceptance,  buUh- was  merely  a 
further  development  of  the  origmal  idea  of  Lieber,  which  was 
at  the  bottom  of  the  whole  scheme. 
Reverting  to  Mr.  Root's  statements  as  to  the  relation  between 
the  In  ttte'of  International  Law  and  the  work  of  the  Hague  Con- 
ference    no  better  example  could  be  quoted  than  the  code  of  arbitral 
;redr  drafted  by  th'e  distin^ished  German  P"bHeist   Professor 
Goldschmidt,  in  1878,  and  adopted  with  sundry  amendments  m  1876, 

7n;Life  and  UtUr.  of  Francii  Lieber  (Perry,  ed.),  p.*3S. 

.  The  Jecellaneoue  writing,  of  Franci.  Lieber  (G.lman.  ed.).  vol.  1..  p.  1*. 


Preface 


IX 


which  served  as  a  basis  of  discussion  for  the  code  of  arbitral  pro- 
cedure adopted  by  the  First  Hague  Conference  in  1899.    One  more 
reference  must  suffice.    Even  a  hurried  and  cursory  exannnation  of 
the  reports  of  the  Hague  Conferences  explaining  and  interpreting  the 
different  conventions  shows  the  influence  of  the  Institute  upon  the 
deliberations  of  this  august  international  assembly.     Reference  is 
made,  without  quoting,  to  the  reports  on  the  questions  of  the  opening 
of  hostilities,  contraband  of  war,  automatic  submarine  contact  mines, 
inviolability  of  correspondence,  and  very  especially  to  the  report  of 
the  most  distinguished  of  all  international  reporters,  on  the  convention 
relative  to  the  creation  of  an  international  prize  court,  which  it  is 
hardly  necessary  to  say  was  prepared  by  Louis  Renault.     In  this 
masterly  report,  at  once  a  model  a.  J  a  monument.  Professor  Renault 
said: 

The  Institute  of  International  Law  has  studied  the  question 
for  a  long  time.  In  1875,  at  the  session  held  at  The  Hague,  it 
appointed^  committee  to  study  a  project  for  the  organization 
of  an  international  prize  tribunal;  but  it  was  not  until  1887 
that  it  adopted  its  international  regulations  on  maritime  prizes. 
So  far  Js  jurisdiction  is  concerned,  the  principle  laid  down  was 
Sat  «♦  the  organization  of  prize  tribunals  of  first  instance 
remains  regulated  by  the  legislation  of  each  State.  .  .  . 

In  view  of  the  respect  which  the  resolutions  of  this  unofficial  body 
of  devoted  jurists  has  already  won  in  the  world  of  affairs,  as  well  as 
in  the  realm  of  thought,  it  is  a  matter  of  congratulation  to  the 
Trustees  of  the  Carnegie  Endowment,  and  a  guaranty  of  the  useful- 
ness and  the  practical  character  of  its  plans,  that  the  Institute  of 
International  Law  has  consented  to  act  as  adviser  to  the  Endowment  s 
Division  of  International  Law,  and  has  appointed  a  Consultative 
Committee  for  this  purpose,  composed  of  the  following  distinguished 
publicists:  Gregers  W.  W.  Gram  (Norway),  Francis  Hagerup  (Nor- 
way), H.  Harburger  (Germany).  Thomas  Ersk.ne  Holland  (Great 
Britain),  Heinrich  Lammasch  (Austria),  Charles  Edouard  Lardy 
(Switzerland),  Louis  Renault  (France),  Alberic  Rolin  (Belgium). 

Milenlco  R.  Vesnitch  (Serbia).  ,  .*  •    x    u- 

The  motto  of  the  Institute  is  Jtutitia  et  Pace,  and  it  is  to  be 
— TH7  B*VorU  to  the  Hague  Conference,  of  1899  and  1907  (Oxford.  1916). 
p.  761. 


I     : 


X  Preface 

hoped  that,  by  the  cooperation  of  two  such  institutions,  the  cause 
of  justice,  which  is  also  the  cause  of  peace,  may  be  advanced. 

It  is  therefore  a  very  great  pleasure,  and  a  very  great  honor,  to 
be  able  to  make  the  first  collection  of  the  resolutions  of  the  Institute 
dealing  with  international  law  and  to  offer  them  in  an  English  transla- 
tion to  the  reading  public.  It  is  often  diflBcult  to  draw  the  line 
between  a  resolution  dealing  with  international  law  and  one  dealing 
with  the  conflict  of  laws,  or,  to  use  the  European  expression,  with 
private  international  law.  Still,  it  is  necessary  to  draw  the  line ;  and 
in  so  doing  care  has  been  taken  to  include  resolutions  of  great  inter- 
national interest  which  would  perhaps  have  difficulty  in  making 
good  their  claim  to  be  considered  as  international  public  law. 

There  are  also  certain  documents  which  could  not,  for  one  rea- 
son or  another,  be  included  among  the  resolutions,  but  which  are 
nevertheless  so  germane  and  important  that  they  should  not  be 
omitted.  They  are  therefore  printed  in  the  appendix.  Special 
reference  is  made  to  the  original  project  and  report  and  the  sup- 
plemental observations  of  Dr.  Goldschmidt  concerning  international 
arbitral  procedure,  Mr.  Fauchille's  project  of  a  convention  dealing 
with  aircraft,  and  likewise  Dr.  von  Bar's  project  on  the  same  sub- 
ject. 

The  translations  are  the  work  of  many  hands.  Some  of  the 
documents  had  been  translated  in  whole  or  in  part  a  number  of 
times,  and  in  such  cases  they  have  been  compared  with  the  originals 
and  revised  whenever  it  seemed  necessary  or  advisable.  Most  of  the 
translations,  however,  were  made  especially  for  this  volume.  The 
word  reitortitsanti  is  often  retained,  as  opinions  differ  as  to  the 
exact  nature  and  meaning  of  the  word.' 

James  Brown  Scott, 
Director  of  the  Diviaion  of  International  Law. 

Washington,  D.  C. 
AprU  15,  1916. 

>  Colonel  Borel,  a  rapporteur  of  the  Second  Hague  Peace  Conference,  said 
that  "  the  word  reiiortiitantt  seems  clearly  to  refer  only  to  persons  l)elonging  to 
a  state  by  virtue  of  the  juridical  tie  of  nationality"  (Actet  et  documents,  vol.  i, 
p.  151).  The  late  Professor  Westlake,  on  the  contrary,  said  that  the  term 
"includes  persons,  if  any,  over  whom  jurisdiction  is  claimed  by  reason  of 
domicile  as  well  as  proper  subjects  or  nationals"  {International  Law,  2d  cd., 
pari  1,  p.  193). 


CONTENTS 

PAOB 

Preface ^ 

Historical  introduction ^^ 

Constitution  of  the  Institute ^^ 

By-laws  of  the  Institute ^^^ 

Personnel  of  the  Institute xxxvi 

International  arbitral  procedure.    Regulations  adopted  by  the 

Institute  August  88,  1875 1 

Laws  and  customs  of  war  on  land.  Examination  of  the  Declara- 
tion of  Brussels  of  1874.     Conclusions  adopted  at  The 

Hague  August  80,  1876 7 

International  duties  of  neutral  States.    Rules  of  Washington. 

Conclusions  adopted  at  The  Hague  August  SO,  1875    .        12 
Treatment  of  private  property  in  naval  warfare.    Conclusions 

adopted  at  The  Hague  August  31,  1876     ...       14 
Conclusions  adopted  at  Zurich  September  11,  1877  •  16 

International    arbitration.      Compromit    clause.      Resolution 

adopted  September  12,  1877 10 

Regulation  of  the  laws  and  customs  of  war.  Application  of  the 
law  of  nalions  to  the  War  of  1877  between  Russia  and 
Turkey.  Observations  and  vamx  considered  by  the  Insti- 
tute September  12,  1877 1"'' 

Organization  of  an  International  Prize  Court.     Resolutions 

adopted  September  12,  1877 22 

International    protection    of    the    Suez    Canal.      Resolutions 

adopted  September  4,  1879 23 

Submarine  cables.     Resolutions  concerning  the  protection  of 

submarine  cables  adopted  September  5,  1879  ...        24 
Laws  and  customs  of  war  on  land.    Manual  adopted  at  Oxford 

September  9,  1880 25 

Extradition.    Resolutions  of  Oxford  voted  September  9,  1880        42 
International  regulations  concerning  prizes.    Articles  1  to  62 

adopted  at  Turin  September  13,  1882  .  46 

xi 


r 


xu 


ContenU 


I  i 


i  ' 

f    1 


Articles  68  to  84  adopted  at  Munich  September  5  and 
6,  188S         

Marine  insurance.     Resolutions  of  September  7,  1883  . 

International  rivers.  The  Kongo.  Conclusion  of  September  7, 
1888 

Communication  of  international  treaties.  Vaeu  adopted  Sep- 
tember 11, 1885  ...  

Maritime  law  and  marine  insuranct.  Mesolution  of  Sep- 
tember 11,  1885  

Communication  of  foreign  laws.  Propositions  adopted  Sep- 
tember 1«,  1886 

Blockade  in  the  absence  of  a  state  of  war 

Declaration  adopted  September  7,  1887  .... 

Communication  of  foreign  laws.  Vaeu  expressed  by  the  Insti- 
tute September  8,  1887 

International  regulations  concerning  prizes.  Articles  85  to 
122  adopted  at  Heideloerg  September  8,  1887 

Navigation  of  international  rivers.  Draft  regulations  adopted 
September  9,  1887 

Marine  collisions.     Draft  adopted  September  4,  1888  . 

Occupation  of  territories.  Draft  of  international  declaration 
of  September  7,  1888 

Admission  and  expulsion  of  aliens.  Draft  international  dec 
laration  of  September  8,  1888 

Competence  of  courts  in  suits  against  foreign  States  or  sov- 
ereigns. Project  of  international  regulations  adopted 
September  11,  1891 

Communication  of  international  treaties.  Draft  of  resolu- 
tion adopted  September  18,  1891     . 

Maritime  slave  trade.     Vceu  adopted  September  12,  1891 

'  n,  unication  of  international  treaties.  Text  of  draft  con 
mention  adopted  September  7,  1892   .... 

Extradition.     Articles  adopted  September  8,  1892  . 

Admission  and  expulsion  of  aliens.  International  regulations 
adopted  September  9,  1892 

Extradition — Revision  of  the  final  article  of  the  Oxford  reso 
lutions.     Resolution  of  March  27,  1894  . 


PAOB 

67 
62 

63 

64 

65 

67 

69 
69 

70 

71 

78 
83 

86 

88 

90 

93 
93 

97 
102 

103 

110 


Contents  xiii 

PAOB 

International  union  for  the  suppression  of  the  maritime  alave 

trade.     Draft  regulations  of  March  30,  1894       .  Ill 

Definition  and  status  of  the  territorial  sea.     Rules  adopted 

March  81,  1894 118 

Union  for  the  protection  of  works  of  literature  and  art.  Re- 
vision of  the  Convention  of  Berne.  Resolutions  adopted 
August  10  and  12,  1895 115 

Penal  sanction  to  be  given  to  the  Geneva  Convention  of  August 

22,  1864.     Resolutions  adopted  August  9  and  12,  1895     117 

Diplomatic  immunities.    Resolutions  adopted  August  18,  1895     119 

Consular  immunities.    Resolutions  adopted  September  26,  1896     123 

Contraband  of  war.     Rules  adopted  September  29,  1896       .      129 

Bombardment  of  open  towns  by  naval  forces.     Resolutions 

adopted  September  29, 1896 131 

Conflict  of  laws  on  the  subjects  of  nationality  and  expatria- 
tion.    Resolutions  adopted  September  29,  1896   .        .133 

Use  of  the  national  flag  for  merchant  ships.     Resolutions 

adopted  Sepfember  80,  1896 136 

Emigration  from  the  point  of  view  of  international  law.  Reso- 
lutions adopted  September  1,  1897 137 

Naval  prizes.  Harmonizing  of  the  draft  regulations  on  prizes 
of  1887  with  the  draft  regulations  on  contraband  of  war 
adopted  in  1896.    Amendments  adopted  in  1897  .     141 

Status  of  ships  and  their  crews  in  foreign  ports  in  time  of  peace 

and  in  time  of  war.    Resolutions  adopted  August  23, 1898     143 

Application  of  the  principles  of  the  Geneva  Convention  to  naval 

warfare.     Resolution  adopted  September  7,  1900  .         .      166 

Rights  and  duties  of  foreign  Powers  and  their  reatortissanU 
towards  established  and  recognized  governments  in  case  of 
insurrection.    Conclusions  adopted  September  8,  1900     .      157 

Responsibility  of  States  by  reason  of  damages  suff'ered  by 
aliens  in  case  of  riot  or  civil  war.  Resolutions  adopted 
September  10,  1900 159 

Submarine  cables  in  time  of  war.  Resolutions  adopted  Sep- 
tember 23,  1902 161 

International  tribunals.     The  Hague  Court  of  Arbitration. 

Resolution  adopted  in  1904 163 


pr 


xiv  Contents 

Opening  of  hwtiUtiei.     Resolutions  and  vcm  adopted  Sep- 

tembcr  «0,  1906 

International   regulation   of   wireless   telegraphy.     Articles 

adopted  September  24,  1906 10* 

Submarine  mines.    Text  of  articles  voted  at  Paris,  1910,  ard 

at  Madrid  in  1911 ^^ 

International  regulation  of  the  use  of  international  streams. 

Text  of  resolutions  adopted  April  80,  1911  •        .      10» 

Aircraft.  Texts  voted  at  Madrid  April  21,  1911  •  •  .170 
Effect  of  war  on  treaties.    Text  of  regulations  of  August  81, 

1918 "^ 

Laws  of  naval  war  governing  the  relations  between  belligerents. 

Manual  adopted  August  9,  1918 1«* 

APPENDIX 

International  arbitral  procedure.     Original  project  and  re- 

port  of  Mr.  Goldschmidt,  June  80,  1874  .                        .205 
Supplementary  observations  by  Mr.  Goldschmidt,  July  30, 
1876.  relative  to  the  regulations  for  international  tri- 
bunals         239 

Aircraft.    Mr.  Paul  Fauchille's  project  of  convention,  1911     243 

Aircraft.    Mr.  von  Bar's  draft *56 

Relations  between  the  Institute  of  International  Law  and  the 
Carnegie  Endowment  for  International  Peace.  Regula- 
tions adopted  August  8,  1913 257 

T                                                                              ....     261 
Index    


: 


HISTORICAL  INTRODUCTION 


We  may  marvel  that  in  our  century  of  associations  there  has 
not  already  existed  for  a  long  time  one  or  more  societies  for  the 
study  ot  'ntemational  law.  This  delay  however  is  easily  understood 
when  we  consider,  first,  the  little  attention  given  until  recently  to 
the  science  of  the  law  of  nations  in  comparison  with  other  branches 
of  law,  and  secondly,  the  essentially  cosmopolitan  character  of  this 
science,  involving  the  necessity  of  going  far  afield  in  search  of  the 
experts,  and  of  bringing  together  from  great  distances  Americans, 
Englishmen,  Russians,  Austrians,  Italians,  French  and  Germans  in 
spite  not  only  of  their  differences  in  language  and  customs  but 
especially  their  political  divisions  and  national  prejudices,  by  sur- 
mounting, in  short,  a  great  number  of  physical  difficulties. 

When  an  idea  is  decidedly  good  it  makes  its  way  and  ends  in 
realization  despite  obstacles.  The  very  fact  of  surmounting  obstacles 
is  a  test  of  good  quality,  This  idea  has  proved  victorious  and  its 
timeliness  was  manifested  by  the  keen  desire  to  see  it  finally  realized 
that  arose  spontaneously  and  almost  simultaneously,  from  1867  to 
1871,  in  Berlin,  New  York,  Geneva,  Ghent  and  Kharkov.  In  Sep- 
tember, 1871,  Mr.  Lieber,  the  eminent  jurist  whom  Lincoln  directed 
to  prepare  his  celebrated  war  articles,  wrote  to  Mr.  Rolin- 
Jaequemyns : 

It  has  long  been  a  favorite  idea  of  mine  that  some  of  the 
foremost  international  jurists  should  hold  a  Congress,  not  offi- 
cial, but  boldly  public  and  international,  ...  a  sort  of 
juridical  oecumcnic  council,  without  pope  and  without  infalli- 
bility. One,  perhaps  more,  have  smiled  at  the  idea ;  I  still  hold 
fast  to  it.  .  .  Ghent  would  be  a  capital  place  for  it.  I  leave 
it  to  you  how  to  mention  this,  either  now  or  when  I  am  gone,  in 
a  note  or  in  the  text ;  but  whenever  or  howsoever  you  do  it,  I  beg 
you  to  give  it  as  a  favorite  idea  of  mine,  held  for  many 
years.  .  .  My  Congress  and  its  labors  would  be  nothing  more 
but  one  of  the  natural  developments  of  our  united  progress  on 
the  broad  road  of  our  Ciscaucasian  culture. 

'Translated  from  the  Tableau  giniral,  pi  1.  The  necessary  additions  to 
bring  this  historical  introduction  down  to  date  are  printed  in  italics  within 
bradcets. 

XT 


rfmm 


xvi       Betolutions  of  the  Itutitute  of  International  Law 

Almost  at  the  same  moment  [says  Mr.  Rolin]'  when  Mr. 
Lieber  wrote  me,  Mr.  Moynier,  president  of  the  International 
Committee  of  the  Red  Cross,  told  a  mutual  friend  at  Geneva  to 
talk  over  a  similar  project  with  me.     In  November,  1872,  Mr. 
Moynier  took  the  trouble  to  come  himself  to  Ghent  to  confer 
with  me.     Other  jurists  or  statesmen  of  different  countries, 
amonff  whom  were  Messrs.  Bluntschli,  von  Holtzcndorff,  Carlos 
CalvoT  Drouyn  de  Lhuys,  de  Parieu  and  Katch^novsky,  the 
eminent  professor  of  Kharkov,  kindly  added  their  encourage- 
ment.   Mr.  Bluntschli  wrote  me:  "  The  idea  of  a  conference  of 
iurists  of  international  law  has  often  received  my  attention  also 
and  I  am  very  desirous  of  seeing  the  statement  of  the  proposi- 
tions that  you  promise  me.    Meanwhile  I  permit  myself  to  com- 
municate to  you  the  form  that  the  idea  has  provisionally  taken 
with  me:  The  main  point  teem,  to  me  to  be  to  create  a  permanmt 
and  durable  institution  which  can  and  should  by  mtennble  ae- 
Tee.  become  an  authority  for  the  rcorld.  .  .  ,"    Mr.  Bluntschli 
then  set  forth  with  his  characteristic  precision  the  plan  of  an 
institute  or  academy  of  international  law  which  has  served  as 
a  basis  for  our  discussions  and  later  correspondence. 
In  March,  1873,  Mr.  Rolin  took  the  decisive  step  by  sending  to 
a  certain  number  of  competent  persons  a  confidential  note  in  which 
he  described  his  project.    The  writer  of  the  note  calls  attention     to 
the  necessity,  the  possibility  and  the  timeliness  of  giving  form  and 
life,  alongside  of  diplomatic  action  and  individual  scientific  action, 
to  1  new  and  third  factor  of  international  kw,  to  wit,  scientific  col- 
lective  action."    I, extract  therefrom  a  few  passages: 

The  idea  of  meeting  and  forming  f  ^«°"**j°"^^* ,  ""^^  ,^! 
increase,  facilitate  and  improve  matertal  producUon,  but  also 
lo  stimulate  intellectual  force.,  to  give  them  a  center,  a  support 
to  assure  them  encouragement,  to  initiate  investigations  to  add 
to  the  authority  of  worthy  proposals,  to  demonstrate  the  worth- 
lessness  or  danger  of  others,  etc.,  is  «^«"^";•'i'^  ™°f  ^VS 
In  all  civilized  countries  we  see  fl"""**''"^' /'^^"".'^  T". 
government  support,  societies,  institutions  ""^  ^cademies  h^^^^^ 
£k  for  their  end  the  development  of  some  one  branch  of  human 
knowlige.  More  recently  the  improvement  in  communication 
Z  facilitated  the  holding  of  periodica  congresses  where  men 
devoted  to  the  s*udy  of  a  particular  science  may  profit  by  the 

TZ'v^  d*  droit  international,  vol.  v.  p.  491,  in  the  very  ""?«"»»»*  ""cl^ 

entitlJ^*  ?.  II  n4c.,^t*  d'organinr  «-.  institution  scieniilt,ue  permanent,  po-r 
favorittr  I'ttudt  «t  If  progrU  du  droit  international. 


HUtorical  Introduction 


xvu 


advantages  derived  from  personal  first-hand  exchange  of  ideas. 
Political  and  social  economy,  law,  history,  medicine,  the  exact 
sciences,  and  the  natural  sciences  have  thus  their  collective  rep- 
resentation, cither  temporary  or  permanent.  Some  of  these 
meetings  have  already  assumed  an  international  character.  .  .  . 
Doubtless  it  would  be  exaggerating  singularly  the  rdle  and 
importance  of  these  meetings  to  expect  from  them  a  great 
number  of  new  ideas,  of  actual  advances  for  science.  Their 
mission  seems  to  be  to  popularize  rather  than  to  create.  It 
is  even  with  some  justice  that  certain  of  them  have  been  re- 
proached with  allowing  thcmtselves  to  be  invaded  by  pretentious 
mediocrities,  or  with  spending  their  energies  to  advance  theories 
more  brilliant  than  substantial,  or  with  scattering  their  atten- 
tion over  a  poorly  defined  program  instead  of  concentrating 
it  upon  a  few  essential  questions.  Accordingly  we  propose 
neither  to  imitate  their  organization  nor  to  seek  their  immediate 
popularity.  In  international  law  it  is  especially  important,  if 
we  wish  to  accomplish  serious  and  lasting  work,  not  to  yield  to 
the  allurements  of  imagination  nor  to  the  illusion  of  a  phrase. 
The  darker  and  the  more  faintly  traced  the  path,  the  more 
necessary  it  is  to  appeal  for  guidance  there  to  all  the  lights 
of  reason  and  especially  of  firm  good  sense.  Have  we  not  seen 
at  Lausanne,  under  the  name  of  Congrett  of  peace  and  liberty, 
meetings  whose  very  title  appears  laughable  to  whoever  calmly 
peruses  the  report  of  their  debates?  We  are  far  from  com- 
paring to  these  assemblies,  which  are  utterly  sterile,  the  brilliant 
and  generous  gatherings  of  the  Congretses  of  peace  held  on 
different  occasions  since  1842  at  London,  Paris,  Brussels  and 
Frankfort.  Nevertheless,  we  believe  the  time  has  come  to  accom- 
plish something  more  exact  than  vaeux  in  general  terms  and 
denunciations  of  war.  What  would  be  necessary  to-day  and 
what  wc  are  about  to  propose  would  be  the  intimate  meeting  of 
a  select  group  of  men  already  known  in  the  science  of  inter- 
national law  through  their  writings  or  their  deeds  and  belong- 
ing, so  far  as  possible,  to  many  different  countries.  This  meet- 
ing would  attempt  to  fix  the  first  landmarks  of  collective  scien- 
tific action,  first,  by  studying  out  in  principle  a  system  of  use- 
fulness, examining  its  effectiveness  and  devising  the  best  form 
to  be  given  it;  secondly,  by  adopting  the  constitution  of  an 
academy  or  international  institute  of  the  law  of  nations. 

The  Institute  should,  according  to  Mr.  Rolin,  serve  as  an  organ 
for  the  legal  opinion  of  the  civilized  world  on  tl.e  subject  of  inter- 
national law. 


xviu  BetdutioM  of  the  ItutUute  of  InternatUmal  Law 

It  I.  bT  h«vb«  conitantly  thii  aim  that  the  membtw  col- 
,^-  t  .LuW^Jlk  to  promote  by  aU  meant  in  their  power 
K5ll«^S^^  ?u.io:  I'nd  development  of  the  law  of  natiojj^ 
S;  rn7t3r.ciprocity  the  In.titute.  independent  of  any  dB- 

^r»t'  lutd  .i.h'I5.I«;.ge  the  cCion  of  the  I„.Ut«.. 

would  singularly  well  facilitate  it.  .  .  •        . ,     .  ,   .       . .  i,  tu. 

There  i.  another  taik,  concrete  and  accidental,  to  ^^^  the 

In.tiute  might  apply   itself  when  circumstance,  permit  and 

iustSV     This  will  be  to  study  and  elucidate  the  question,  of 

intemltionallal  whose  solution  is  rendered  necessary  by  cur- 

«nt^ven"s     No  doubt  a  great  number  of  these  question,  con- 

:S  trobicuSg  factor  !t  political  interest.    NevertheUs^  Uje 

most  complex  have  their  legal  side,  which  we  may  hope  to  throw 

light  upon.* 

The  confidential  note  was  favorably  received.  Soon  afterward, 
the  persons  who  had  contributed  their  advice  as  well  as  a  smd^ 
number  of  other  notables  of  Europe  and  America  were  malted  to 
Ghent,  the  residence  of  Mr.  Rolin,  to  confer  upon  the  project  that 
had  been  communicated  to  them  and  to  found  the  Institute  of  Inter- 

°**E'leven''o'f* those  who  were  invited  accepted  and  became  the  found- 
ing  members  of  the  Institute;  these  were  ^e""-  Assc'-.  of  Am.^^^^^^^ 
dam;  Besobrasof,  of  St.  Petersburg;  Bluntschli,  of  Heidefterg, 
Calvo,  of  Buenos  Aires ;  Field,  of  New  York ;  de  Laveleye,  of  Liige ; 
Lorimer,  of  Edinburgh;  Mancini,  of  Rome;  Moynier,  of  Geneva; 
Pierantoni,  of  Rome;  Rolin- Jacquemyns,  of  Ghent. 

Twenty-three  others  could  not  come  to  the  meeting  but  adhered 
to  the  project  with  or  without  condition  and  were  declared  to  be 
members  of  the  Institute  from  its  foundation.     Three  others  who 

«^ArUcle  cited:  De  la  nice$tHi,  etc.,  pp.  465,  486-4B8. 


Hittorical  Introduction 


XIX 


had  not  been  invited  were  elected  memberi  by  the  eleven  founders  in 
■euion  at  Ghent  in  1873.  These  twenty-iix  memben,  coworkers 
with  the  eleven  founders  from  the  very  first,  arc,  in  order  of  coun- 
tries:  Messrs.  Ahrens,  von  Bulmcrincq,  Goldschmidt,  HefFter,  von 
HoltzendoHT,  for  Germany;  L.  von  Stein,  for  Austria;  Laurent,  for 
Belgium;  de  Landa,  for  Spain;  Lawrence,  Wharton,  Washburn, 
Woolsey,  for  the  United  States ;  Cauchy,  Drouyn  de  Lhuys,  Hautc- 
feuille,  Lucas,  Mass^,  de  Parieu,  Vcrg^,  for  France ;  Bernard,  West- 
lake,  for  Great  Britain ;  Esperson,  Sclopis,  Vidari,  for  Italy ;  Nau- 
mann,  Ollvecrona,  for  Sweden. 

The  Institute  has  thus  far  held  [twenty-eight]  sessions: 
1,  Ghent,  1878;  «,  Geneva,  1874;  8,  The  Hague,  1876;  4, 
Zurich,  1877;  6,  Paris,  1878;  6,  Brussels,  1879;  7,  Oxford,  1880; 
8,  Turin,  188S;  9,  Munich,  188S;  10,  Brussels,  1885;  11,  Heidel- 
berg, 1887;  IS,  Lausanne,  1888;  13,  Hamburg,  1891;  14,  Geneva, 
1892:  [15,  Paru,  18H;  16,  Cambridge,  1895;  17,  Venice,  1896; 
18,  Copenhagen,  1897;  19,  The  Hague,  1898;  20,  Neuchdtel,  1900; 
tl,  Bruttelt,  1902;  22,  Edinburgh,  190^;  23,  Ghent,  1906;  '24, 
Florence,  1908;  25,  Parii,  1910;  26,  Madrid,  1911;  27,  Chrittiania, 
1912;  28,  Oxford,  191S}. 

The  official  seat  of  the  Institute,  in  confoni.ity  with  Article  11 
of  the  original  constitution,  which  was  not  changed  by  the  Oxford 
revision,  was  at  Ghent,  the  residence  of  lit,  G.  Rolin-Jaequemyns, 
from  1878  to  1878,  the  period  of  his  first  incumbency  of  the  ofice 
of  secretary  general;  from  1878  to  189S  at  Bn'ssels,  the  residence 
of  Mr.  A.  Rivier  and  of  Mr.  6.  Rolin-Jaequemyns  while  he  was 
secretary  general  for  the  second  time. 

Since  the  month  of  September,  189S,  it  has  been  at  Lausanne, 
the  residence  of  the  present  secretary  general,  Mr.  Ernest  Lehr. 
[Mr.  Lehr  was  succeeded  as  secretary  general  by  Baron  Dsscamps 
in  1902,  nho  was  in  turn  succeeded  in  that  office  in  1906  by  Mr. 
Albiric  Rolin,  the  present  incumbent,  then  of  Ghent,  but  now  of 
The  Hague.  The  seat  of  the  Institute  has  been  accordingly  at 
Louvain,  Ghent  and  The  Hague,  the  places  of  residence  of  the  secre- 
taries general.] 


IT 


CONSTITUTION  OF  THE  INSTITUTE ' 

AlTICLK  I 

The  Inititulc  of  Inttrnational  Law  i>  an  t<xclu«vely  Kienliflc 
atiociation  without  official  character. 

Iti  object  ii  to  aid  the  growth  of  international  law: 

1.  By  endeavoring  to  state  the  general  principle!  of  the  iciencc 
in  luch  a  way  aa  to  latisfy  the  lenie  of  juiticc  of  the  civilixed  world; 

8.  By  giving  awiitancc  to  every  icrioui  attempt  at  the  gradual 
and  progrcMive  codification  of  international  law ; 

8.  By  advocating  the  official  acceptance  of  those  principles  that 
have  been  re'-ognizcd  as  being  in  harmony  with  the  needs  of  modern 

societies;  ...» 

4.  By  contributing,  within  the  limits  of  its  competence,  both  to 
the  maintenance  of  peace  and  to  the  observance  of  the  laws  of  war; 

5.  By  examining  the  difficulties  which  may  arise  in  the  interpre- 
tation or  application  of  the  law  and  by  giving  expression,  where 
needful,  to  reasoned  le^al  opinions  in  doubtful  or  controverted  cases; 

6.  By  assisting,  through  publications,  public  instruction  and  all 
other  means,  in  the  triumph  of  those  principles  of  justice  and  hu- 
manity which  should  govern  the  relations  between  peoples. 

Akticlz  2 

Not  more  than  one  session  of  the  Institute  can  be  held  in  each 
year ;  the  interval  between  two  sessions  cannot  exceed  two  years. 

In  each  session  the  Institute  selects  the  place  and  time  for  the 
following  session. 

This  selection  may  be  referred  to  the  Bureau.' 

Article  S 
The  Institute  is  compr  ed  of  membert,  attociatei  and  honorary 
•nemher$, 

i"R7^ised  Constitution,  voted  at  Paris  April  2,  1910.  completed  at  Oxford. 

AnnuaxTt,  vol.  26,  p.  1.  „       i.i  w 

•The  Constitution  of  1900  created  a  hoAy  called  the  Council,  which  was 
chaiged  with  manv  of  the  duties  now  performed  hy  the  Bureau.  The  Council 
was  abolished  by  the  present  Constitution. 

XX 


Constitution  of  the  Institute 


XXI 


Abticlz  4 

The  Inatitute  chootci  iti  memberi  from  amonft  ^^^  >*sociatei. 

The  total  number  of  members  cannot  exceed  lixty,  but  need  not 
reach  thai  figure. 

Akticlb  0 

The  ai$ociatei  are  chosen  by  the  members  from  among  the  men 
of  different  nations  who  have  rendered  servitx-s  to  international  law 
in  the  domain  of  theory  or  that  of  practice. 

They  have  the  right  to  vote  at  the  meetings  except  on  questions 
concerning  the  constitution  und  by-laws,  election,  or  finances  of  the 
Institute. 

The  total  number  of  associates  cannot  exceed  sixty,  but  need  not 
reach  that  figure. 

AkTICLS  6 

There  cannot  be  assigned,  by  new  election,  to  the  citizens  of  the 
same  State  or  confederation  of  States  u  proportion  of  places  as  mem- 
bers exceeding  one-fifth  of  the  total  number  of  members  immediately 
after  sue'-      '"»ion. 

The  san     proportion  shall  be  observed  for  associates. 

When  a  person  m<«y  claim  more  than  one  nationality  it  is  his 
present  active  nationality  which  is  to  be  taken. 

Abticue  7 
The  title  of  honorary  member  may  be  conferred : 
On  members  or  associates; 

On  any  persons  who  have  distinguished  themselves  in  the  do- 
main of  international  law. 
Honorary  members  enjoy  all  the  rights  and  prerogatives  of  full 
members. 

Abticle  8 
The  members,  in  concert  with  the  associates,  in  each  State  may 
constitute  committees  composed  of  persons  devoted  to  the  study  of 
the  social  and  political  sciences  in  order  to  further  the  efforts  of 
the  Institute  among  their  compatriots. 

Article  9 
At  the  end  of  each  session  tho  election  of  a  president  and  i 
vice  president  for  the  following  session  takes  place. 


IT 


xxu 


Constitution  of  the  InatiivM 


w 


ii! 


They  together  with  the  secretary  general  form  the  Bureau  of 
the  Institute  in  the  interval  between  sessions. 

Two  other  vice  presidents  are  elected  at  the  beginning  of  each 
session  and  remain  in  office  until  the  following  first  of  January,  with 
the  president  and  vice  president  forming  the  Bureau. 

Aeticle  10 
In  the  interval  between  sessions  and  in  the  absence  of  contrary 
provisions  of  the  constitution  the  Bureau  dispatches  all  business  of 
an  administrative  or  urgent  character. 

AftTICLE  11 

The  secretary  general  is  elected  by  the  Institute  for  three  ses- 
sions.    He  is  eligible  to  immediate  reelection. 

He  is  charged  with  drawing  up  the  procit-verbaux  of  each  meet- 
ing, which  are  submitted  to  the  approval  of  the  Institute  in  the  follow- 
ing meeting;  the  proch-verbaux  which  cannot  be  adopted  by  the 
Institute  are  submitted  to  the  president  foi  his  approval. 

The  secretary  general  is  also  in  charge  of  all  the  publications  of 
the  Institute,  of  current  business,  jf  the  ordinary  routine  correspond- 
ence of  the  Institute  and  the  execution  of  its  decisions  except  when 
the  Institute  itself  has  provided  otherwise.  He  is  the  custodian  of 
the  seal  and  of  the  archives.  His  residence  is  considered  as  the  scat 
of  the  Institute.  At  every  regular  session  he  presents  a  summary 
of  the  recent  labors  of  the  Institute. 

Abticle  is 
The  Institute  may,  on  the  proposal  of  the  secretary  general,  name 
one  or  more  secretaries  or  assistant  secretaries  to  aid  him  in  the 
performance  of  his  duties  or  to  take  his  place  when  he  is  temporarily 

absent. 

Article  IS 

The  Institute  appoints  for  three  sessions  a  treasurer  to  transact 
the  financial  business  and  to  keep  the  accounts. 

The  treasurer  presents  a  financial  report  at  every  ordinary  session. 

Two  members  are  designated  at  the  beginning  of  each  session  as 
auditors  to  examine  the  report  of  the  treasurer.  They  make  their 
report  in  the  course  of  the  session. 


Constitution  of  the  Institute 


xxui 


If  need  be,  the  Institute  appoints  a  librarian,  also  for  the  term  of 
three  sessions. 

Akticx£  14 

As  a  general  rule,  during  the  meetings  of  the  Institute  the  votes 
on  the  subject  of  resolutions  are  given  orally  and  after  discussion. 

Whenever  there  is  a  vote  by  roll-call  the  names  of  members  or 
associates  who  have  voted  for  and  against  or  who  have  abstained  are 
recorded  in  the  procii-verbal. 

Elections  are  held  by  ballot  and  only  the  members  present  are 
permitted  to  vote. 

Nevertheless,  for  election  of  new  members  or  associates  those 
absent  members  arc  permitted  to  send  their  votes  in  writing  under 
sealed  cover.  To  be  elected  the  candidates  must  obtain  the  majority 
of  the  votes  of  the  members  present  and  also  the  majority  of  all  the 
votes  legally  cast. 

The  Bureau  is  obliged  to  present  to  the  Institute,  with  its  opinion 
in  proper  cases,  every  candidacy  proposed  in  conformity  with  the 
constitution  and  the  by-laws. 

Article  16 
As  an  exception  and  in  the  special  cases  where  the  Bureau  unani- 
mously deems  it  advisable,  the  votes  cf  those  absent  may  be  accepted 
through  the  channel  of  correspondence. 

ARTICI.E  16 

When  questions  that  are  subjects  of  controversy  between  two  or 
more  States  are  under  consideration,  the  members  of  the  Institute 
belonging  to  these  States  are  permitted  to  express  and  support  their 
opinions ;  but  they  must  abstain  from  voting. 

Article  17 

The  Bureau  appoints  reporters  from  among  the  members  or  asso- 
ciates of  the  Institute,  or  constitutes  from  the  membership  of  the 
Institute  committees  for  the  preliminary  study  of  questions  that  are 
to  be  submitted  to  it  for  deliberation. 

In  case  of  urgency  the  secretary  general  himself  prepares  reports 
and  conclusions. 


!  i 


XXIV 


Constitution  of  the  Institute 


Akttcls  18 
After  each  Bcssion  the  Institute  publishes  the  report  of  its  work. 

Abtici^  19 
The  expenses  of  the  Institute  are  defrayed : 

1,  By  the  dues  of  full  members  and  associates  and  by  an  en- 
trance fee  to  be  paid  by  new  associates.  The  amount  of  the  dues 
and  of  the  entrance  fee  is  fixed  by  the  by-laws  (session  of  Ghent, 

1906). 

The  dues  are  payable  from  and  including  the  year  of  election. 

They  carry  a  right  to  all  the  publications  of  the  Institute. 

A  delay  of  three  years,  if  not  explained,  in  the  payment  of  dues 
may  be  considered  as  equivalent  to  resignation ; 

2.  By  endowment  and  other  liberalities. 

Provisi  .'.  is  made  for  the  progressive  formation  of  a  fund  the 
revenue  from  which  is  sufficient  to  pay  the  expenses  of  the  secretary's 
office,  the  publications,  the  sessions  and  other  regular  functions  of 
the  Institute. 

Article  20 

This  constitution  shall  be  revised  in  whole  or  in  part  on  the  re- 
quest of  ten  members.  The  request  must  be  addressed  to  the  Bureau 
with  reasons  in  support  thereof  at  least  three  months  before  the 
opening  of  the  session. 

A&TICI.E  21 

Every  member  or  associpte  who  shall  have  been  absent  from  five 
consecutive  sessions  shall  bj  considered  as  having  resigned,  unless  he 
explains  to  the  satisfaction  of  the  Bureau  that  he  has  taken  an  active 
part  in  the  work  of  the  Institute  or  that  he  has  been  prevented  from 
doing  so  by  causes  beyond  his  c  ,ntrol.  A  registered  letter  of  notifi- 
cation shall  be  sent  him  after  the  fourth  absence  by  the  secretary 
general.    This  provision  does  not  apply  to  honorary  members. 


BY-LAWS  OF  THE  INSTITUTE ' 


Part  I. — Preliminary  Work  Between  Sessions 

Article  1 

In  pursuance  of  Article  17  of  the  constitution,  the  Bureau  shall 
designate  for  each  question  two  reporters,  or  one  reporter  and  a 
committee  for  investigation  and  study. 

In  the  first  case,  each  of  the  reporters  designated  prepares  a 
separate  memoir  and,  if  necessary,  one  of  the  two  or  a  third  re- 
porter designated  by  the  Bureau  presents  during  the  session  an  oral 
report  on  the  basis  of  and  by  the  aid  of  the  preliminary  memoirs. 
The  two  memoirs  and  the  conclusions  of  the  oral  report  shall  at  the 
proper  time  be  published  and  distributed. 

In  the  second  case,  the  reporter  n*  y  be  assisted  by  a  coreporter. 
Any  member  or  associate  expressing  desire  to  that  end  shall  be 
entitled  to  membership  on  such  committees  for  investigation  and 
study  as  he  may  indicate  to  the  secretary      neral. 

Article  2 

After  the  Bureau  shall  have  designated  a  reporter  and  a  com- 
mittee for  investigation  and  study,  the  reporter  shall  communicate 
with  the  members  of  the  committee  bt  fore  December  SI  of  the  year  of 
his  appointment  in  order  to  submit  his  ideas  to  them  and  to  receive 
their  suggestions. 

Article  3 

The  secretary  general  shall  acquaint  himself  through  the  reporters 
witli  the  progress  of  the  work,  inform  the  Bu'-'au  thereof  and  give 
an  account  of  it  in  his  report  to  the  Institute. 

Article  4 
The  reporters  shall  in  good  time  communicate  their  reports  to 
the  secretary  general  so  that  they  may  be  published  and  distributed 
before  the  session  at  which  they  are  to  be  discussed. 

'  As  revised  April  9,  1910.  Annwiire,  vol.  36,  p.  9. 


!    I 


I  1 


xxvi  By-laios  of  the  Iiutitute 

The  secretary  general  does  not  have  to  provide  for  the  printing 
or  for  the  distribution  of  the  other  preliminary  labors  prepared 
either  by  the  reporters  or  by  the  members  of  the  committees. 
These  labors  shall  be  inserted  in  the  Annuaire  only  in  exceptional 
cases  and  in  virtue  of  an  express  decision  of  the  Institute  or  of  the 
Bureau. 
Pabt  II.— The  Presentation  of  New  Members  or  Associates 

Article  6 
Candidacies  for  the  places  of  active  or  honorary  members  or  of 
associates  are  presented  by  the  Bureau  under  the  following  con- 

1.  Foi  countries  that  have  at  least  three  members,  they  should 
be  notified  in  writing  to  the  secretary  general  by  one  of  the  members 
from  the  country  to  which  the  candidate  belongs ;  this  member  should 
guarantee  that  the  candidate  would  accept  election,  that  all  the 
members  of  the  country  have  been  consulted  and  that  -  najority  of 
them  have  expressed  themselves  in  favor  of  the  candidate.  He  shall 
add  the  qualifications  of  the  candidates  and  the  nam3s  of  the  favor- 
able members. 

Every  candidacy  notified  to  the  secretary  general  less  than  four 
months  before  the  opening  of  the  session  shall  be  deemed  to  be  pre- 
sented too  late  and  must  be  made  the  subject  of  a  new  proposal  for 
the  session  folUwing. 

The  Bureau  is,  on  the  other  hand,  obliged  to  present  to  the  In- 
stitute, with  its  views  if  need  be,  every  candidacy  proposed  in  con- 
formity with  the  preceding  provisions   (Constitution,  Article  14 

•n  fine) ; 

2.  For  countries  having  fewer  than  three  members,  the  candi- 
dacies are  presented  by  the  Bureau  together  with  the  opinion  of 
the  member  or  members  already  belonging  to  the  Institute ; 

8.  For  countries  not  having  any  member,  the  candidacies  are 
presented  by  the  Bureau  without  restriction. 

Articu:  6 
/it  least  one  month  before  the  opening  of  the  session,  the  secretary 
general  shall  send  every  member  a  list  of  the  candidacies  with  the 
papers  in  support.     He  adds  thereto,  for  the  use  of  members  pre- 


By-laws  of  the  Institute 


xxvu 


Tented  from  attending  the  session,  an  invitation  to  send  him,  in  two 
separate  sealed  envelopes  to  be  delivered  to  the  president  of  the 
Institute,  two  ballots  bearing  the  name  of  the  sender,  one  for  the 
election  of  members,  the  other  for  that  of  associates  (see  below, 
Article  16;  and  the  Constitution,  Article  14,  paragraph  3). 

Part  III. — Sessions 
Section  One, — Preliminary  Work 

AvncvE  7 

Not  more  than  one  session  can  be  held  in  each  year;  the  interval 
between  two  sessions  cannot  exceed  two  years. 

In  each  session,  the  Institute  selects  the  place  and  time  for  the 
following  session.  This  selection  may  be  referred  to  the  Bureau 
(Constitution,  Article  2).  In  this  latter  case,  the  secretary  general 
shall,  at  least  four  months  in  advance,  notify  the  members  and  asso- 
ciates of  the  place  and  date  adopted  by  the  Bureau. 

Abticle  8 
The  pragram  of  the  session  shall  be  prepared  by  the  Bureau  and 
as  soon  as  possible  the  secretary  general  shall  communicate  it  to  the 
members  and  associates.  The  program  shall  be  accompanied  by  the 
succinct  summary,  provided  by  Article  3  above,  of  the  progress  of 
the  preliminary  labors  as  well  as  by  any  other  information  likely  to 
facilitate  the  task  of  members  taking  part  in  the  session. 

Section  Two. — Administrative  Meetings 

ARTICI.E  9 

Members  (active  and  honorary)  alone  take  part  in  the  adminis- 
trative sessions. 

The  first  meeting  of  each  session  is  always  devoted  to  the  ad- 
ministrative business. 

It  shall  be  opened  by  the  president  without  an  address,  or  in  his 
absence  by  the  first  vice  president,  and  in  the  absence  of  the  latter, 
by  the  senior  member  in  age. 

The  first  vice  president  shall  sit  at  the  right  and  the  secretary 
general  at  the  left  of  the  president. 


xxviii  By-laws  of  tJie  Itutitute 

Articub  10 

Immediately  after  the  opening  of  the  meeting,  the  secretary 
general  .hall  communicate  the  names  of  the  assistant  secretaries  or 
reporters  designated  by  him  to  assist  him  in  writing  up  the  procii- 
verbaux  of  the  session.  The  assistant  secretaries  or  reporters  shall 
act  only  during  the  session. 

The  secretary  general  shall  then  communicate  letters  from  mem- 
bers unable  to  be  present  at  the  session,  and  this  shall  be  followed  by 

the  roll-call. 

Akticle  11 

The  president  shall  immediately  call  for  the  election  of  two  vice 
presidents  by  secret  ballot.  He  shall  read  aloud  the  names  written 
on  each  ballot.  Election  takes  place  by  the  absolute  majority  of 
the  members  present. 

If  this  majority  is  not  reached  at  the  second  voting,  balloting 
takes  place  between  the  persons  who  have  obtained  the  largest  num- 
ber of  votes ;  in  case  of  a  tie  vote,  preference  shall  be  given  to  the 

oldest  member. 

In  elections  by  ballot,  the  blank  and  void  ballots  must  be  counted 
in  determining  the  absolute  majority. 

ARTICI.E  12 

The  president  shall  then,  if  necessary,  call  successively  for  ballots 
to  be  taken  to  fill  the  offices  of  secretary  general  and  secretaries  or 
assistant  secretaries,  as  well  as  of  treasurer,  when  their  terms  have 

expired. 

Article  13 

The  treasurer  is  then  invited  to  submit  the  accounts  of  the  In- 
stitute, and  two  auditors  shall  be  immediately  elected  to  examine 
these  accounts.  The  auditors  report  during  the  course  of  the  ses- 
sion (Article  IS  of  the  Constitution). 

Article  14 

The  presidtnt  then  calls  for  an  exchange  of  views  in  regard  to  the 
qualifications  of  the  candidates  proposed  us  members  or  as  associates. 

Voting  for  the  list  takes  plare  successively  in  two  separate  votes, 
one  foi  the  election  of  new  members  and  the  other  for  the  election  of 
associates. 


By-latoi  of  the  Irutitute 


XXIX 


Only  candidates  fulfilling  the  conditions  determined  in  Articles  6 
and  6  above  arc  eligible.  Ballots  bearing  other  names  are  deemed  to 
be  void. 

After  the  counting  of  the  votes  cast  by  the  members  present,  the 
president  shall  read  the  names  of  the  absent  members  who  may  have 
availed  themselves  of  the  right,  conferred  upon  them  by  Article  14, 
paragraph  6,  of  the  Constitution,  to  participate  in  the  election  of 
members  or  associates  through  correspondence.  The  president  then 
opens  the  envelopes  and  deposits  in  a  special  urn,  without  reading 
them,  the  ballots  sent  by  absent  members,  and  then  proceeds  to  count 
these  ballots. 

If  several  ballotings  are  necessary  to  bring  about  an  election,  the 
votes  cast  by  the  absentees  arc  in  each  ballot  added  to  the  votes  cast 
by  the  members  present. 

The  president  shall  declare  elected  those  who  have  obtained  cumu- 
latively an  absolute  majority  of  the  votes  of  the  members  present  and 
an  absolute  majority  of  the  total  number  of  votes  of  members  present 
and  of  members  absent  who  have  taken  part  regularly  in  the  election. 

In  case  the  number  of  those  who  have  obtained  this  majority  ex- 
ceeds the  number  of  places  to  be  filled,  only  those  who  have  obtained 
the  highest  number  of  votes  are  considered  as  elected.  The  elimina- 
tion is  effected  by  first  reducing  each  nationality  to  the  proportion 
that  it  must  not  exceed  (Constitution,  Article  6)  and  then  the 
number  of  members  and  the  number  of  associates  to  the  limit  set  by 
the  number  of  places  to  be  filled.  In  these  different  operations, 
whenever  there  is  a  tic  in  the  result  of  the  voting  the  decision  is  in 
favor  of  the  oldest. 

The  newly  elected  persons  may  take  part  immediately. 


Article  15 
If  necessary  the  president  then  submits  the  proposals  of  the 
Bureau  for  the  representation  of  the  Institute  in  the  Bluntschli 
foundation,  and  communicates  the  appointment  that  he  may  have 
personally  made  for  the  representation  of  the  Institute  in  the  Holt- 
zendorfF  foundation. 

Article  16 
The  president  must  remind  those  members  who  Jesire  to  propose 
to  the  Institute  the  investigation  of  new  questions  that  they  are  in 


1 1 


i  I 


XXX  By-laiM  of  the  Institute 

vited  to  put  their  communicatioiw  into  the  handi  of  the  Bureau  at 
the  very  opening  of  the  sesiion.  This  recommendation  mutt  be  re- 
newed bj  the  president  at  the  opening  of  the  plenary  meetings. 

Akticle  17 
The  librarian  files  his  report  on  the  discharge  of  his  duties  since 
the  previous  session.  The  president  should  on  this  occasion  make 
reference  to  the  vau,  that  all  members  will  kindly  enrich  the  library 
with  a  complete  collection  of  their  works ;  this  vceu  should  be  repeated 
by  the  president  at  the  opening  of  the  plenary  meetings. 

A»TICI,E  18 

The  Institute  acts  upon  the  conclusions  of  the  report  made  by 
the  auditors  in  regard  to  the  accounts  of  the  treasurer. 

AaTici.E  19 
The  Institute  may  act  upon  propositions  of  an  administrative 
nature  only  when  they  have  been  inscribed  in  the  program  sent  in 
advance  to  its  members.  Other  propositions  may  only  be  considered 
and  referred  for  examination  to  the  Bureau ;  if  the  latter  recognizes 
the  urgency  of  the  proposition,  it  may  call  for  a  new  discussion 
in  the  course  of  the  session  at  another  meeting,  and,  if  e  majority 
of  the  members  present  also  declares  the  urgency  of  the  measure,  a 
vote  upon  the  principle  involved  may  be  taken  in  the  course  of  this 
new  meeting;  otherwise,  the  proposition  stands  adjourned  to  the 
following  session. 

AKTICI.E  80 

Propositions  tending  to  the  modification  of  the  constitution  and 
formulated  by  more  than  ten  members  can  be  brought  up  for  dis- 
cussion only  after  they  have  been  addressed  to  the  Bureau,  through 
the  intermediary  of  the  secretary  general,  together  with  reasons  in 
support  thereof,  at  least  four  months  before  the  opening  of  the 
session  (Article  82  of  the  Constitution).  The  secretary  general  is 
obliged  to  communicate  propositions  of  this  nature  to  the  other 
members  of  the  Bureau  immediately. 


By-laiva  of  the  Irutitute 
Section  Three. — Plenary  Meeiingi 


XXXI 


Akticle  si 
Plenary  meetings,  in  which  the  members  and  associates  of  the 
Institute  participate,  are  preceded  by  a  purely  formal  meeting,  the 
program  of  which  is  prepared  between  the  Bureau  and  the  authorities 
of  the  country  where  the  Institute  meets.  No  discussion  takes  place 
in  the  course  of  this  purely  formal  meeting,  which  shall  be  exclusively 
devoted  to  the  reception  of  the  Institute  by  the  local  authoritie8  and 
to  the  report  of  the  secretary  general  on  the  progress  of  the  labon 
of  the  Institute. 

Aeticle  %% 

Plenary  meetings  shall  be  devoted  to  the  scientific  labors. 

The  members  and  associates  parti''ipate  therein  on  a  footing  of 
complete  equality,  both  having  the  right  to  discuss  and  vote. 

The  meetings  are  not  public ;  the  Bureau  however  may  admit  the 
local  authorities  and  the  local  press,  as  also  distinguished  persons 
who  request  the  privilege  of  attending. 

Akticle  23 

Every  meeting  shall  be  opened  with  the  reading  of  the  prods' 
verbaux  of  the  preceding  meeting.  A  special  procii-wrbal  shall  be 
made  for  each  meeting,  even  when  several  meetings  take  place  on  the 
same  day,  but  the  prods-verbal  of  the  morning  meetings  is  read 
only  at  the  opening  of  the  meeting  on  the  following  day. 

The  Institute  approves  or  modifies  the  prods-verbal.  Correc- 
tions may  be  requested  only  with  regard  to  questions  of  form,  and 
errors  or  omissions ;  a  resolution  of  the  Institute  may  not  be  modified 
on  the  occasion  of  the  reading  of  the  prods-verbal. 

The  prods-verbal  of  the  last  meeting  of  a  session  is  approved 
by  the  president  (Constitution,  Article  11). 

Aai'A  LE  24 

The  president,  after  consultation  with  the  Bureau  and  reporters, 
determines  the  order  in  which  the  business  shall  be  taken  up ;  but  the 
Institute  can  always  modify  the  order  indicated  by  the  president. 

He  sets  aside  the  time  necessary  for  the  labors  of  the  committees. 


XXXll 


By-law*  of  the  Institute 


i  ■ 


i  ii 


Aeticls  S5 
For  each  queition  on  the  program  the  reporter!  ihall  in  turn 
take  their  placci  at  the  left  of  the  Bureau. 

The  proposition!  of  the  reporter!  shall  form  the  ba!i!  of  the 

discuision. 

The  member!  of  the  committee!  have  the  right  to  complete  and 

develop  their  perional  opinion!. 

AaTicLE  26 

The  discussion  shall  then  be  opened. 

It  takes  place  in  the  French  language  with  such  exception!  a! 
the  president  deem!  opportune. 

Akticuc  27 
No  one  shall  take  the  floor  without  having  obtained  it  from  the 

president. 

The  president  should  write  down  the  names  of  members  or  asso- 
ciates as  tlicy  request  the  floor  and  grant  it  to  each  of  them  in  his 
order  on  the  list. 

The  reporters,  however,  are  not  subject  to  taking  their  turn  on 
the  list,  but  may  obtain  the  floor  after  requesting  it  from  the  presi- 
dent. 

Article  28 
If  the  president  wishes  to  take  the  floor  as  a  member  of  the 
Institute,  the  vice  president  shall  occupy  the  chair. 

Abticle  29 
Reading  of  an  address  is  prohibited  except  by  special  authoriza- 
tion from  the  president. 

Abticle  so 
If  a  speaker  departs  too  far  from  the  question  under  discussion, 
the  president  should  call  him  to  order. 

Article  31 
All  propositions  or  amendments  should  be  transmitted  to  the 
president  in  writing. 


By-laxDt  of  the  Institute 


Aeticu  SS 

If  during  ditcuision  a  queition  of  order  is  raised,  the  main  dit* 
eusaion  shall  be  interrupted  until  the  assembly  shall  have  acted  upon 
the  question  of  order. 

Abticlk  89 

A  motion  to  bring  the  discussion  to  a  close  may  be  presented. 
Such  a  motion  can  be  adopted  only  by  a  two-thirds  majority  of  the 
assembly. 

If  no  one  requests  the  floor,  or  if  a  motion  to  close  the  discussion 
is  adopted,  the  president  declares  the  debate  closed;  from  this  mo- 
ment the  floor  may  not  be  granted  to  any  one,  except  in  special  catei 
to  the  reporter. 

Abticle  S4 

Before  proceeding  to  the  voting,  the  president  shall  submit  to 
the  assembly  the  order  in  which  the  questions  will  be  put  to  vote. 

If  there  is  objection,  the  assembly  shall  decide  immediately. 

Aeticle  85 

Amendments  to  amendments  are  put  to  vote  before  amendments, 
and  the  latter  before  the  main  proposition.  Motions  to  reject, 
pure  and  simple,  are  not  considered  as  amendments. 

When  there  are  more  than  two  principal  coordinate  propositions, 
they  are  all  put  to  vote  one  after  another;  and  each  member  of  the 
assembly  may  vote  for  one  of  them.  When  all  propositions  shall  thus 
have  been  voted  upon,  if  none  of  them  has  received  a  majority,  the 
assembly  decides,  by  a  new  ballot,  which  of  the  two  propositions  with 
the  fewest  votes  shall  be  eliminated.  Then  the  remaining  proposi- 
tions aro  voted  upon  as  against  one  another  until  one  of  them,  left 
alone  for  consideration,  may  become  the  object  of  a  final  vote. 

Aeticle  86 
The  adoption  of  an  amendment  to  an  amendment  carries  no 
obligation  to  vote  for  the  amendment  itself;  nor  does  the  adoption 
of  an  amendment  mean  a  vote  in  favor  of  the  main  proposition. 

Aeticle  37 
When  a  proposition  is  divisible,  anyone  may  demand  a  division 
of  it  before  the  vote. 


^  '■■■ 


I  I 


XXXIT 


By-Unoi  of  the  InitUute 


AkticlbSS 
Whwi  th«  propotitioB  under  diicutiion  U  drafted  in  •rrei»l 
•rticlet,  •  general  dMcueeion  of  the  whole  propoeition  ehJl  Urtt  take 

^  After  diKUision  and  Toting  upon  the  •rtidet,  a  toU  on  the 
entire  propoiiUon  shall  be  taken.  Thia  tote  maj  be  poetponed  bj 
the  auemUj  to  a  lubecquent  meeting. 

Abticls  89 
Voting  ihall  take  place  by  raiting  thr  '    ad. 
No  one  ie  obUged  to  vote.    If  part  of  i..e  perioni  preient  abstain, 
it  is  the  majority  of  those  voting  that  decides. 

In  case  of  a  tie  vote,  the  proposition  is  considered  as  rejected. 

Aeticlb  40 
Voting  must  take  place  by  roU-call  if  five  persons  so  request. 
Voting  by  roU-call  is  always  necessary  on  an  entire  proposition  of 

a  scientific  nature. 

The  procit-verbal  mentions  the  names  of  members  and  associates 
voting  for  or  vc  g  againit  and  of  those  abstaining  (Constitution, 
Article  14). 

AsncLB  41 

The  president  votes  last. 

AaTici.B  4S 
The  Institute  may  decide  upon  a  second  discussion,  to  take  place 
either  in  the  current  session,  or  at  the  following  session,  or  it  may 
refer  its  decisions  to  a  drafting  committee  to  be  appomted  by  the 
Institute  itself  or  by  the  Bureau. 

Abticle  48 
Articles  88  to  4«  are  applicable  to  discusaions  in  administrative 
meetings.    Articles  9,  last  paragraph,  18  and  19  in  fine,  are  UkewUe 
appUcable  to  the  discussions  of  the  plenary  meetings. 

ADDrrioMAL  PaovisioKB 
The  Institute  has  made  some  new  provisions,  particularly  with 


By-laws  of  the  Iiutiiute 


XXXV 


iM]Met  to  duM.  the  Nobel  Prise  and  financial  buaineu,  by  giving  them 
the  character  of  bj-lawe  but  without  inserting  them  in  the  report 
of  the  adminiitrativc  meeting*.' 


'  It  apptan  frav  the  Jmrnmrntr*  for  IMM,  pp.  ffM  uui  Ht,  that  the  dwa 
of  fuU  nMmbcn  and  of  UMcUtct  wen  flsed  at  the  uniform  annoal  araowit  of 
•0  fraacf  and  that  crcrjr  acwlf  elected  aModata  la  ohilged  to  pajr  an  catraaei 
fM  of  M  frasci. 


H 


1 1 


ii 


MEMBERS    AND    ASSOCIATES,   PAST   AND 

PRESENT,  OF  THE  INSTITUTE  OF 

INTERNATIONAL  LAW 

Ahrens,  Heinrich.    Germany.    Member  1878-4. 

Alcorta,  Amancio  M.     Argentine  Republic.     Associate  1891-1902. 

Alhucemas,  Manuel  Garcia  Prieto,  marques  de.  Spain.     Honorary 

member  1911 — . 
Alin,  Oscar  Josef.    Sweden.    Associate  1896-1900. 
Alvarez,  Alejandro.     Chile.     Associate  1913 — . 
Alverstone,  Richard  Everard  Webster,  viscount.     Great  Britain. 

Associate  190S-4;  member  1904-15. 
Anzilotti,  Dionisio.     Italy.     Associate  1908 — . 
Ardagh,  Sir  John.    Great  Britain.    Associate  190 *-7. 
Arntz,  Egide  Rodolphe  Nicolas.     Belgium.     Member  1877-84. 
Aschehoug,   Torkel   Halvorsen.      Sweden    and    Norway.      Member 

1874-94. 
Asser,  Charles  Daniel.     Netherlands.     Associate  1894—. 
Asser,  Tobias  Michael  Card.     Netherlands.     Member  1873-1906; 

honorary  member  1906-13. 
Aubert,  Ludvig   Mariboe   Benjamin.      Sweden   and   Norway.     As- 
sociate 1879-92;  member  1892-6. 
Azcarate,  Gumersindo  de.     Spain.     Associate  1911 — . 
Baker,   Sir    George    Sherston,    bart.      Great    Britain.      Associate 

1879—. 
Banning,  Emile  Thdodore   Joseph   Hubert.     Belgium.     Associate 

1892-8. 
Bar,  Karl  Ludwig  von.     Germany.     Member  1874-1906;  honorary 

member  1906-13. 
Barclay,  Sir  Thomas.     Great  Britain.     Associate  1885-91 ;  member 

1891—. 
Bartholony,    Jean    Fran9ois.      Switzerland.      Honorary    member 

1873-81. 
Beauchet,    Marie    Francois    Ludovic.      France.      Associate    1892- 

1908;  member  1908 — . 


Members  and  Associates  of  the  Institute        xxxvii 


Beer  Poortugael,  Jacobus  Catharinus  Cornelis  den.     Netherlands. 

Associate    1874-88;    member    1888-191S;    honorary    member 

1912-3. 
Beernaert,  Auguste  M.  J.     Belgium.     Honorary  member  1906-lS. 
Beichmann,  F'cderik  Vlademar  Nicolai.  Norway.  Associate  1910 — . 
BeirSo,  F;tii'i^''o  Antonio  da  Veiga.    Portugal.    Associate  1891-6; 

.  !t',nb«;r  1S96 — . 
Bergi  ihir.  Carl.     P   vsia.     Associate  1885-98. 
Bern.'   d,  MountBgu  .    Great  Britain.    Member  1873-82. 
Berncy,  oacqu.?      Switzerland.     Associate  1897-8. 
Besobrasof,  Vladimir.     Russia.     Member  1873-89. 
Blociszewski,  Josef  de.     France.     Associate  1912 — . 
Bluntschli,  Johann  Caspar.     Germany.     Member  1873-81. 
Boeck,  Jean  Barthelemy  Charles  de.    France.    Associate  1910 — . 
Boehm.  Ferdinand.     Germany.    Associate  1894rl901. 
Boiceau,  Charles  Marc  Samson.    Switzerland.    Associate  1895-1907. 
Bourgeois,    L6on    Victor    Auguste.      France.      Honorary    member 

1908—. 
Brocher,  Charles  Antoine.     Switzerland.     Associate  1 874-5;  mem- 
ber 1876-84. 
Brocher  de  La  Flechere,  Henri.     Switzerland.     Associate  1877-85 ; 

member  1885-1908. 
Brusa,  Emilio.     Italy.     Associate  1877-8;  member  1878-1908. 
Bulmerincq,  August  von.    Germany.    Member  1878-90. 
Bustamante  y  Sirv^n,  Antonio  Sanchez  de.     Cuba.    Associate  1895- 

1910;  member  1910—. 
Buzzati,  Giulio  Cesare.    Italy.    Associate  1891-8;  member  1898 — . 
Cahn,  Wilhelm.    Germany.    Associate  1898 — . 
Calvo,  Carlos.     Argentine  Republic.     Member  1873-95;  honorary 

member  1895-1906. 
Canalejas  y  Mendez,  Jos4.     Spain.     Honorary  member  1911-3. 
Caratheodory,   Eticnne.     Turkey.     Associate    1888-1904;  member 

1904-7. 
Carle,  Giuseppe.     Italy.    Associate  1882-3. 
Camazza  An^ari,  Giuseppe.     Italy.     Associate  1882-1911. 
Catellani,  Enrico  L.     Italy.    Associate  1891-6 ;  member  1896 — . 
Cauchy,  Eugene  Fran9oi8.     France.     Member  1873-7. 
Chretien,  Alfred  Marie  Victor.    France.    Associate  1891—. 


il  iUi 


xxxvm 


Members  and  Associates  of  the  Institute 


Clire,  Jules.    France.    Associate  1879 — . 

Qunet,  Edouard.    France.    Associate  1876-80;  member  1880—. 

Conde  y  Luque,  Rafael.     Spain.     Associate  1911—. 

Corsi,  Alessandro.     Italy.    Associate  1898-1908;  member  1908—. 

Courcel,  Alphonse  Chodron  de,  baron.     France.     Honorary  member 

1896—. 

Daguin,  Victor  Fflix  Femand.    France.    Associate  18s>d — . 

Dahn,  Felix  Ludwig  Sophus.     Germany.     Associate  1891-1900. 

Danevsky,  Vsevolod  de.    Russia.    Associate  1880-98. 

Darras,  Alcide  Hippolyte  Parfait.     France.     Associate  1896-1908. 

Dato  Iradier,  Edouardo.     Spain.     Honorary  member  1911—. 

Demangeat,  Joseph  Charles.     France.     Member  1877-96. 

Descamps,  Edouard    Fran9ois    Eugine,    baron.     Belgium.     Asso- 
ciate 1892-1900;  member  1900—. 

Desjardins,  Achille  Arthur.     France.     Associate  1891-6;  member 

1896-1901. 
Despagnet,  Frantz  CUment  Ren6.     France.     Associate  1891-1904; 

member  1904-6. 
Dicey,  Albert  Venn.     Great  Britain.     Associate  1880-6;  member 

1886—. 
Diena,  Giulio.    Italy.    Associate  1908-12;  member  1912— . 
Dillon,  John  'orrest.    United  States.    Associate  1883-91 ;  member 

1891—. 

Drouyn  de  Lhuys,  Edouard.     France.    Member  1873-8. 

Dubois,  Ernest.    France.    Associate  1875-82. 

Dupuis,  Charles  Alfred  Marie.  France.  Associate  1900-10;  mem- 
ber 1910—. 

Engelhardt,  Edouard  Philippe.  France.  Associate  1885-7;  mem- 
ber 1887-1913;  honorary  member  1913 — . 

Errera,  Paul.     Belgium.     Associate  1900 — . 

Esperson,  Pietro.     Italy.     Member  1873-98. 

Eyschen,  Paul.     Luxemburg.     Associate  1910—. 

FauchiUe,  Paul  Auguste  Joseph.  France.  Associate  1897-1908; 
member  1908 — . 

Fedozzi,  Prospero.     Italy.     Associate  1908 — . 

Feraud-Giraud,  Louis  Joseph  Delphin.  France.  Associate  1887-91 ; 
member  1891-8;  honorary  member  1898-1908. 


Members  and  Ataociates  oj  the  Institute     xxxix 

Feiguson,  Jan  Helenus.    Netherlands.    Associate  1888-91 ;  member 

1891-1908. 
Field,  David  Dudley.     United  States.     Member  1878-87;  honor- 
ary member  1887-9*. 
Fiore,  Pasquale.     Italy.     Member   1874-1910;  honorary   member 

1910-4. 
Foote,  John  Alderson.     Great  Britain.     Associate  1896-1911. 
Fromageot,  Henri  Auguste.     France.     Associate  1908 — . 
Fusinato,  Guido.    Italy.    Associate  1887-96;  member  1896-1914. 
Gabba,  Carlo  Francesco.    Italy.    Associate  1882-7 ;  member  1887 — . 
Gareis,  Karl.     Germany.     Associate  1891-1910. 
GeiFcken,  Friedrich  Heinrich.    Germany.    Associate  1886-91;  mem- 
ber 1891-6. 
Gessner,  Ludwig.    Germany.    Associate  1875-8;  member  1878-90. 
Glasson,    Ernest    D^sir6.      France.      Associate    1888-95;    member 

1895-1907. 
Goldschmidt,  Levin.     Grermany.     Member  1873-97. 
Goos,  August  Herman  Ferdinand  Carl.     Denmark.     Member  1877- 

1911 ;  honorary  member  1911 — . 
Goudy,  Henry.     Great  Britain.     Associate  1896 — . 
Gram,  Gregers  Winther  Wulfsberg.     Norway.     Associate   1898- 

1904;  member  1904^. 
Griinhut,  Carl  Samuel.  Austria-Hungary.     Assoi  ■        1880-94. 
Hagerup,  Georg  Francis.      Norway.     Associate   1897-8;  member 

1898—. 
Hall,  William  Edward.    Great  Britain.    Associa'  >  1875-82 ;  member 

1882-94. 
Hammarskjold,  Knut  Hjalmar  Leonard.    Sweden.    Associate  1906- 

10;  member  1910 — . 
Hannen,  James  Henry,  6flron.    Great  Britain.     Associate  1883-5; 

member  1885-94. 
Harburger,    Heinrich.      Germany.      Associate    1883-92;    member 

1892-1916. 
Hart,  Sir  Robert,  bart.    Great  Britain.     Honorary  member  1892- 

1911. 
Hartmann,  Adolf.     Germany.     Associate  1887-91 ;  member  1891-7. 
Hautefeuille,  Laurent  Basile.    France.    Member  1873-5. 
HefFter,  August  Wilhelm.     Germany.     Member  1873-80. 


3d  Members  and  Associates  of  the  Institute 

Heimburger,  Karl  Friedrich.  Germany.  Associate  1891-8 ;  member 
1898-19.10. 

Hellner,  Johannes.    Sweden.     Associate  1      J—. 

Hilty,  Charles.     Switzerland.     Associate  1891-1908. 

Holland,  Thomas  Erskine.  Great  Britain.  Associate  1876-8;  mem- 
ber 1878—. 

Holtzendorff,  Franz  Joachim  Wilhelm  Philipp  von.  Germany. 
Member  1873-89. 

Hornung,  Joseph.    Switzerland.    Member  1878-84. 

Huber,  Eugen.     Switzerland.     Associate  1908 — . 

Hubler,  Bemhard.     Germany.     Associate  1898-1910. 

Ivanovsky,  Ignace.  Russia.     Associate  1895-1910. 

Jellinck,  Gcorg.    Germany.    Associate  1891-8. 

Jettel  von  Ettenach,  Emil.     Austria-Hungary.     Associate  1894?—. 

Jitta,  Joscphus.     Netherlands.     Associate  1913 — . 

Jordan,  Marie  Joseph  Etienne  Camille.    France.    Associate  1910—. 

Kalindero,  John.    Roumania.    Associate  1887-9. 

Kamarovski,  Leonid,  graf.     Russia.     Associate  1875-91;  member 

1891-1912. 
Kaneko,  Kentaro,  6aron.     Japan.     Associate  1891 — . 
Kapoustine,  Michel  de.    Russia.    Member  1877-99. 
Kasparek,  Franz.    Austria-Hungary.     Associate  1888-91 ;  member 

1891-1903. 
Kaufmann,    Wilhelm.      Germany.     Associate    1904-1913;   member 

1913—. 
Kebedgy,  Michel.    Greece.    Associate  1895-1906;  member  1906 — 
Kennedy,  Sir  William  Rann.     Great  Britain.     Associate  1910-13; 

member  1913-5. 
Kleen,  Rikard.     Sweden  and  Norway.     Associate  1891-4;  member 

1894--. 

Koenig,  Charles  Gustave.  Switzerland.  Associate  1875-86;  mem- 
ber 1885-9«. 

Krauel,  Richard.     Ger-^any.     Associate  1910 — . 

Laboulayc,  Edouard  Rene  Lcfebure.     France.     Member  1878. 

Labra  y  Cadrana,  Rafael  Maria  de.  Spain.  Associate  1878-87; 
member  1887 — . 

Laine,  Jules  Armand.  France.  Associate  1886-96;  member 
1896-1908. 


Members  and  Aasociates  of  the  Institute 


xli 


Lambennont,  Franfois  Auguste,  baron.    Belgium.    Honorary  mem- 
ber 1892-1905. 

Lammaach,  Heinrich.    Austria-Hungary.    Associate  1887-91 ;  mem- 
ber 1891—. 

Landa  y  Alvarez  de  Carvallo,  Nicasio.    Spain.    Member  1873-91. 

Lapradelle,  Albert  de.    France.    Associate  1910 — . 

Lardy,  Charles  Edouard.     Switzerland.    Associate  1891-5;  member 
189*—. 

Laurent,  Fran9oi8,    Belgium.    Member  1873-87. 

Laveleye,  Emile  Louis  Victor,  baron  de.    Belgium.    Member  1873-92. 

Lawrence,  Thomas  Joseph.     Great  Britain.     Associate  1885-1908; 
member  1908 — . 

Lawrence,  William  Beach.    United  States.    Member  1873-81. 

Leech,  Henry  Brougham.     Great  Britain.     Associate  1892 — . 

Leguizamon,  Jose  Faustino  Onesimo.     Argentine  Republic.     Asso- 
ciate 1879-87. 

Lehr,  Paul  Ernest.     France.     Associate   1879-87;  member   1887- 
1910;  honorary  member  1910 — . 

Le  Touze,  Ch.    France.    Associate  1875-86. 

Liszt,  Franz  von.     Austria-Hungary.     Associate    1900-8;   mem- 
ber 1908—. 

Loening,  Edgar.    Germany.    Associate  18741-96. 

Lomonaco,  Giovanni.    Italy.    Associate  1882-9. 

Lorimer,  James.    Great  Britain.    Member  1873-90. 

Louter,  J.  de.     Netherlands.    Associate  1904-13;  member  1913 — . 

Lucas,  Charles  Jean  Marie.    France.    Member  1873-89. 

Lueder,    Karl    Christoph    Johann    Friedrich    Ludwig.     Germany. 
Member  1877-96. 

Lyon-Caen,  Charles   Leon.      France.      Associate    1880-5;   member 
1885—. 

Macdonell,  Sir  John.     Great  Britain.     Associate  1900-12;  member 
1912—. 

Maluquer  y  Salvador,  Jose.    Spain.    Associate  189,1-1911 ;  member 
1911—. 

Mamiani  della  Rovere,  Terenzio,  conte.    Italy.     Member  1874-82; 
honorary  member  1882-5. 

Mancini,  Pasquale  Stanislao.     Italy.     Member  1873-88. 

Mandelstam,  Andr6.    Russia.     Associate  1904 — . 


xlii 


Members  and  Aaaociates  of  the  Itutitute 


Manzato,  Renato.     Italy.    Associate  1896—. 

Marquardsen,  Heinrich.    Germany.    Member  1874-97. 

Martens,  Fedor  Fedorovich.     Russia.     Member  1874-1909. 

Martens-Ferrao,  Joao  Baptista  de.  Portugal.  Associate  1882-91 ; 
member  1891-5. 

Martin,  William  Alexander  Parsons.  United  States.  Associate 
1388-91 ;  member  1891—. 

Martitz,  Ferdinand  Karl  Ludwig  von.  Germany.  Associate  1882- 
91 ;  member  1891—. 

Mass^,  Gabriel.    France.    Member  187S-81. 

Matzen,  Henning.    Denmark.    Associate  1892-5;  member  1895-1910. 

Meier,  Ernst.    Germany.    Associate  1875-86. 

Meili,  Friedrich.  Switzerland.  Associate  1887-1906;  member  1906- 
14. 

Mercier,  Andr£.     Switzerland.    Associate  1908 — . 

M^rignhac,  Alexandre  Giraud  Jacques  Antoine.  France.  Associate 
1904—. 

Meurer,  Christian.    Germany.    Associate  1908 — . 

Meyer,  Felix.     Grermany.     Associate  1911 — . 

Meyer,  Gcorg.    Germany.    Associate  1891-8. 

Midosi,  Henrique.    Portugal.    Associate  1896-1900;  member  1900-4. 

Missir,  P.    Roumania.    Associate  1904 — . 

Montluc,  I^on  Pierre  Adrien  de.  France.  Associate  1875-85;  mem- 
ber 1885—. 

Moore,  John  Bassett.    United  States.    Associate  1891-1908 ;  member 

1908—. 
Motono,  Ichiro.    Japan.    Associate  1904 — . 
Moynier,  Louis  Gabriel  Gustave.     Switzerland.     Member  1873-98; 

honorary  member  1898-1910. 
Naumann,  Christian.     Sweden  and  Norway.     Member  1873-88. 
N^rincx,  Alfred.    Belgium.    Associate  1902 — . 
Neumann,    Leopold,   freiherr   von.      Austria-Hungary.      Member 

1874-88. 
Niemeyer,  Theodor.    Germany.    Associate  1913—. 
Nold^,  Baron  Boris.    Russia.    Asso^-tte  1912 — . 
Norsa,  Cesar.     Italy.     Associate  1876-83;  member  1883-90. 
Nys,  Ernest.    Belgium.    Associate  1882-5 ;  member  1885 — . 


Members  and  Asaociatea  of  the  Itutitute        xliii 

OHv«rt.R.ni6ndeD«lm.uydeOHvart,marg«^,de.    Spain.    As.©- 
ciate  1888-1910;  member  1910-.  ^ 

Olivecrona     Samuel   Rudolf  Detlof  Knut      Sweden   and   Norway. 
Member  1878-1905.  ^ 

Olivi,  Luigi.    Italy.    AModate  1891-1908;  member  1908-11. 

°PP?iLT;i^'"\^"°"'  L«^«»"-     Great  Britain.     Associate 
1908-11;  member  1911 — . 

Orelli,  Aloys  von.    Germany.    Associate  1886-8;  membe.  1888-92 

"m^Ss'  ^°"''  ^'""  ^'"'  ^'^""°"  ^'-   ^""«-    ^'^^' 

Peralta,  Manuel  Marfa  de.     Costa  Rica.     Associate  1891— 

''"1mM90S."'^  ''''"'•     ^™'"'^-     '^"°"**^  '^''»-«*'  "^"'be' 
Petersen,  Aleksis.     Denmark.    Associate  1876-84 
Phillimore,  Sir  Robert  Joseph,  bart.     Great  Britain.     Honorary 
member  1883-5.  ""^ary 

^''TM6?'n"^'*°*    "'''^'    *'^'"'^'"18''8-1906;  honorary  member 

^'"'1910^'""'   ^""'      ^"°"'     '^"°"'**    1897-1910;   member 
Pina  y  Millet,  Ramon.    Spain.    Associate  1911— 
Plener,  Ernst,  .d/.r  von.    Austria-Hungary.    Associate  1912-. 
Pohtis,  Nicolas  Socrate.    France.    Associate  1902— 
Pollock,  5ir  Frederick.    Great  Britain.    Associate  1886-90. 
Poullet,  Prosper  A.  M.  J.    Belgium.    Associate  1908- 
Pradier-Foder^.  Paul  Louis  Ernest.     France.     Associate  1879-82- 
member  1882-1904.  '  *»  o» . 

Prins,  Adolphe.     Belgium.     Aspo-iate  1880-94 
Rahusen  Edouard  Nicolas.    Netherlands.    Honorary  member  1898- 

1900 ;  member  1900-10 ;  honorary  member  1910-13 
Reay    Donald  James  Mackay,  baron  Reay  de  Reay,  lord.     Great 

Britain.     Associate  1882-92;  member  1892— 
Renault  Jean  Louis.    France.    Associate  1876-82;  member  1 882-. 
Reuterskiold.  Carl  Ludvig  August  Axel.   Sweden.  Associate  1911- 
Richards.  S.r  Henry  Erie.    Great  Britain.    Associate  1913-. 
R.vier.  AJphonse  Pierre  Octave.     Switzerland.     Associate  1878-8. 
member  1878-98.  *o<o-o, 

Roguin,  Ernest.    Switzerland.    Associate  1891  6;  member  1 896-. 


Associate  1882- 


xliv  Members  and  Aatociates  of  the  Itutitute 

Rolin,  Albcric.    Belgium.    Associate  1878-83;  member  188S— . 
Rolin  Jaequemyns,  Edouard  Gustave  Marie.     Belgium.     Associate 

1891-8;  member  1898—. 
Rolin-Jaequemyns,    Gustave    Henri    Ange    Hippolyte.      '^elgium. 

Member  187S-1902. 
Romero  y  Gir6n,  Vicente.    Spain.    Associate  1891-1900. 
Root,  Elihu.    United  States.    Associate  1912 — . 
Rostworowski,     Michal     J.     C.       Austria-Hungary.       Associate 

1898—. 
Roszkowski,  Gustav,  ritter  von.    Austria-Hungary. 

91 ;  member  1891—. 
Rouard  de  Card,  Martial  Michel  Edgard.    France.    Associate  1893- 

1912;  member  1912—. 
Rydin,  Herman  Ludvig.     Sweden  and  Norway.     Associate  1885- 

1900. 
Sacerdoti,  Adolfo.    Italy.    Associate  1878-88;  member  1888—. 
Saripolis,  Nicolas  Jean.    Greece.    Member  1877-87. 
Schonborn,  Friedrich,  graf.    Austria-Hungary.     Associate  1902-7. 
Schucking,  Walthcr  Max  Adrian.    Germany.    Associate  1910 — . 
Schulze-Gaevernitz,  Herman  Johann  Friedrich  von.  Germany.  Asso- 
ciate 1879-80;  member  1880-8. 
Sclopis  di  Salcrano,  Paolo  Fedcrigo,  conte.    Italy.    Member  1873-8. 
Scott,  James  Brown.     United  States.     Associate  1908-10;  member 

1910—. 
Scott,  Sir  John.    Great  Britain.    Associate  1891-1904. 
Seigneux,  Georges  dc.     Switzerland.     Associate  1894f-1912. 
Seijas,  Rafael  Fernando.    Venezuela.    Associate  1891 — . 
Scla  y  Sampil,  Aniccto.    Spain.     Associate  1911 — . 
Sieveking,    Friedrich.     Germany.      Associate   1892-1900;    member 

1900-10. 
Stein,  Lorenz  von.    Austria.    Member  1873-90. 
Steinbach,  Emil.     Austria-Hungary.     Associate  1902-7. 
Stoerk,  Felix.    Germany.    Associate  1888-95 ;  member  1895-1908. 
Streit,  Georgios.     Greece.     Associate  1898-1910;  member  1910—. 
Strisower,  Leo.     Austria-Hungary.     Associate  1891-1908;  member 

1908—. 
Takahashi,  Sakuyci.     Japan      Associate  1908 — . 
Taube,  Mikhail  Aleksandrovich,  baron.    Russia.     Associate  1910 — . 


Members  and  As»ociate$  of  the  Institute         xlv 

Tcichmann,  Albrccht.    Germany.     Associate  1880-94i. 

Tcrao,  Tom.    Japan.     Associate  1900-11. 

Thaller,  Edmond  Eugene.     France.     Associate  1900 — . 

Torres    Campos,    Manuel.      Spain.      Associate    1885-91;    member 

1891—. 
Triepcl,  Heinrich.    Germany.     Associate  1910 — . 
Twiss,  Sir  Travers.     Great  Britain.     Member  1874-91;  honorary 

member  1891-7. 
Ullmann,  Emanuel,  ritter  von.    Austria-Hungary.    Associate  1898- 

1904;  member  1904-13. 
Vallotton,  James.     Switzerland.     Associate  1912 — . 
Van  der  Rest,  Eugene.    Belgium.    Associate  1885-94. 
Vedel,  Axel.    Denmark.    Associate  1912 — . 
Verge,  Charles  Henri.     France.     Member  1873-5. 
Vesnitch,  Milenko  R.    Serbia.    Associate  1896-8;  member  1898—. 
Vidari,  Ercole.     Italy.    Member  1873-8. 
Vincent,  Louis  Felix  Rene.     France.     Associate  1892-8. 
Wallace,  Sir  Donald  Mackenzie.    Great  Britain.    Associate  1878-95; 

member  1895 — . 
Washburn,  Emory.     United  States.     Member  1873-7. 
Waxel,  Platon  L'vovich.     Russia.     Associate  1891 — . 
Weiss,    Charles    Andr^.      France.      Associate    1887-98;    member 

1898—. 
Westlake,  John.    Great  Britain.    Member  1873-98;  honorary  mem- 
ber 1898-1913. 
Wharton,  Francis.    United  States.    Member  1873-89. 
Whiteley    James  Gustavus.     United  States.     Associate  1902 — . 
Wiesse,  Carlos.     Peru.    Associate  1904—. 
Wilson,  Greorge  Grafton.     United  States.     Associate  1910 — . 
Woolsey,  Theodore  Dwight.    United  States.    Member  1878-89. 
Yvemfes.    France.    Associate  1879-82. 
Zcballos,  Estanislao  S.     Argentine  Republic.     Associate  1908-11 ; 

member  1911 — . 


w 


ARBITRAL  PROCEDURE » 

At  iU  Geneva  meeting  in  1874,  the  Inktitute  had  deliberated  at 
length  upon  a  draft  of  regulationt  for  international  courti  of  arbitra- 
tion* carefully  prepared  with  a  ■tatement  of  reaions  by  Mr.  Goldichmidt. 
The  diicnuion,  which  was  ezhauitive  and  thoroughly  icientific,  had  re- 
■ulted  in  the  adoption  of  the  draft,  with  a  few  amendmenta  accepted  by 
the  reporter.  The  revision  of  this  amended  draft  was  entrusted  to  a 
committee  charged  with  preparing  it  for  the  following  meeting.' 

Mr.  Field  was  the  president  of  this  committee,  and  Mr.  Rivier  its 
reporter.  The  text  upon  which  it  agreed  was  discussed  by  the  Institute 
in  plenary  session  at  The  Hague,  August  S8,  1879,  and  was  unanimously 
adopted,*  in  the  following  form: 


Draft  Regulations  fob  Intebnational  Akbitral 
Procedube  ' 

The  Institute,  desiring  that  recourse  to  arbitration  for 
the  settlement  of  international  disputes  be  resorted  to  more 
and  more  by  civilized  peoples,  hopes  to  be  of  service  toward 
the  realization  of  such  progress  by  proposing  for  arbitral 
tribunals  the  following  eventual  regulations.  It  recom- 
mends them  for  adoption  in  whole  or  in  part  to  States  that 
may  conclude  compromu. 

Abticle  1.  The  compromia  is  concluded  by  means  of 
a  valid  international  treaty. 

It  may  be: 

(a)  In  advance,  either  for  all  differences  or  for  differ- 
ences of  a  certain  kind  to  be  determined,  that  may  arise  be- 
tween the  contracting  States. 

(6)  For  one  difference  or  several  differences  already 
arisen  between  the  contracting  States. 

Abticle  2.  The  compromis  gives  to  each  contracting 
party  the  light  of  appealing  to  the  arbitral  tribunal  that  it 

'  TabUau  gin^rai  dt  Porganitation,  det  trataMX  it  du  pirionn*l  d«  I'inititut 
d*  droit  inHmational  (Paris,  1893),  p.  12S. 

'  For  a  translation  of  Mr.  Goldschmidt's  draft,  see  the  appendix,  p.  305. 
'Annvairt  dt  I'inttitut  d»  droit  inttmational,  vol.  1,  p.  SI. 
•  Ibid.,  pp.  45,  84.  •  Jbid..  p.  126. 

1 


1 

f  i 


2        Retolutiotu  of  the  Inatitute  of  International  Law 

designates  for  the  decision  of  the  dispute.  In  the  absence 
of  a  designation  of  the  number  and  the  names  of  the  arbi- 
trators in  the  compromia,  the  arbitral  tribunal  shall  settle 
upon  this  according  to  the  provisions  laid  down  by  the  com- 
promia or  by  another  convention. 

In  the  absence  of  any  provision,  each  of  the  contracting 
parties  chooses  on  its  own  part  an  arbitrator,  and  the  two 
arbitrators  thus  named  choose  a  third  arbitrator  or  designate 
a  third  person  who  shall  select  him. 

If  the  two  arbitrators  named  by  the  parties  cannot  agree 
upon  the  choice  of  a  third  arbitrator,  or  if  one  of  the  parties 
refuses  the  cooperation  that  it  owes  under  the  compromia 
for  the  formation  of  the  arbitral  tribunal,  or  if  the  person 
designated  refuses  to  make  a  choice,  the  compromia  becomes 
of  no  effect. 

Article  8.  If  at  the  outset,  or  because  they  have  been 
unable  to  come  to  an  agreement  upon  the  choice  of  arbitra- 
tors, the  contracting  parties  have  agreed  that  the  arbitral 
tribunal  should  be  formed  by  a  third  person  designated  by 
them,  and  if  the  designated  person  takes  upon  himself  the 
formation  of  the  arbitral  tribunal,  the  steps  to  be  followed 
to  this  end  shall  in  the  first  instance  be  in  accordance  with  the 
provisions  of  the  compromia.  In  the  absence  of  provisions, 
the  designated  third  person  may  either  himself  name  the 
arbitrators  or  propose  a  certain  number  of  persons  among 
whom  each  of  the  parties  shall  choose. 

Article  4.  Sovereigns  and  heads  of  Governments  with- 
out any  restriction  shall  be  eligible  to  be  named  international 
arbitrators,  and  also  all  persons  who  have  the  capacity  t(; 
exercise  the  functions  of  arbitrator  under  the  common  law 
of  their  country. 

Article  5.    If  the  parties  have  legally  agreed  on  arbi 
trators  individually  determined,  the  incapacity  of  or  a  vaiw 
exception  to  even  a  single  one  of  these  arbitrators  vosis  lifc 
entire  compromia,  unless  the  parties  can  come  to  an  aasam 
upon  another  competent  arbitrator. 

If  the  compromia  does  not   carry  an   individual   ifc- 
tennination  of  the  arbitrator  in  question. 


It  IS  tirce'wrv.  m 


r  ^ij 


Arbitral  Procedure  8 

case  of  incapacity  or  valid  ext.^jtion,  to  follow  the  course 
prescribed  for  the  original  choice  (iVrticles  2,  8). 

Akticle  0.  The  declaration  of  acceptance  of  the  office 
of  arbitrator  is  made  in  writing. 

Ahticle  7.  If  an  arbitrator  refuses  the  arbitral  office, 
or  if  he  withdraws  after  having  accepted  it,  or  if  he  dies,  or  if 
he  becomes  insane,  or  if  he  is  legally  challenged  by  reason 
of  incapacity  under  the  terms  of  Article  4,  application  of  the 
provisions  of  Article  5  shall  be  made. 

Abticlk  8.  If  the  seat  of  the  arbitral  tribunal  is  not 
mentioned  in  the  cumpromis  or  in  a  subsequent  convention 
Ifctween  the  parties,  its  iletermiimtion  is  made  by  the  arbi- 
trator or  a  nmjority  of  the  arbitrators. 

The  arbitral  tribunal  is  authorized  to  change  its  seat 
only  in  case  the  accomplishment  of  its  functions  at  the  place 
agreed  upon  is  impossible  or  clearly  dangerous. 

Abticij:  9.  The  arbitral  tribunal,  if  composed  of  sev- 
eral members,  appoints  one  of  them  as  president,  taken  from 
its  number,  and  selects  one  or  more  secretaries. 

The  arbitral  tribunal  decides  in  what  language  or  lan- 
guages its  deliberations  and  the  arguments  of  the  parties 
shall  take  place,  and  the  documents  and  other  instruments  of 
pr(K)f  shall  be  presented.  It  keeps  a  record  of  its  delibera- 
tions. 

Article  10.  All  members  shall  be  present  at  the  de- 
]il)erutions  of  the  arbitral  tribunal.  The  tribunal  may  never- 
theless delegate  to  one  or  several  members  or  even  commit 
to  thinl  persons  certain  investigations. 

If  the  arbitrator  is  a  State  or  its  head,  a  municipal  or 
otiaer  corporation,  an  authority,  a  faculty  of  law,  a  learned 
s««jety,  or  the  actual  president  of  the  mu;  xipal  or  other  cor- 
i»oration  or  authority,  faculty  or  company,  all  the  argu- 
raents  may  take  place  with  the  consent  of  the  parties  before 
tbe  commissioner  named  ad  hoc  by  the  arbitrator.  A  pro- 
teix)l  thereof  shall  be  drawn  up. 

Ahticle  11.  Xo  arbitrator  is  authorized  without  the  con- 
iient  of  the  parties  to  name  a  substitute. 

/^TicLE  12.    If  the  com^ro/nw  or  a  subsequent  conven- 


I'm  ; 
I  :i  I 

m 


4        Resolutions  of  the  Institute  of  International  Law 

tion  between  the  parties  prescribes  for  the  arbitral  tribunal 
the  procedure  to  be  followed,  or  the  observance  of  a  deter- 
mined and  positive  law  of  procedure,  the  arbitral  tribunal 
must  conform  to  that  provision.  In  the  absence  of  such  a 
provision,  the  procedure  to  be  followed  shall  be  freely  chosen 
by  the  arbitral  tribunal,  which  is  only  bound  to  conform 
to  the  principles  that  it  has  declared  to  the  parties  that  it 
desires  to  follow. 

The  direction  of  the  arguments  belongs  to  the  president 
of  the  arbitral  tribunal. 

Article  13.  Each  of  the  parties  may  appoint  one  or 
more  representatives  before  the  arbitral  tribunal. 

Article  14.  Exceptions  based  on  incapacity  of  arbitra- 
tors should  be  advanced  before  any  other.  If  the  parties  are 
silent,  any  subsequent  objection  is  inadmissible,  except  in 
cases  of  incapacity  originating  subsequently. 

The  arbitrators  are  to  decide  on  the  exceptions  based  on 
the  incompetence  of  the  arbitral  tribunal,  except  in  the  re- 
course referred  to  in  Article  24,  paragraph  2,  and  in  con- 
formity with  the  provisions  of  the  compromis. 

There  shall  be  no  appeal  from  preliminary  judgments 
on  competence,  unless  coupled  with  an  appeal  from  the 
final  arbitral  decision. 

In  case  doubt  as  to  competence  depends  on  the  interpre- 
tation of  a  clause  of  the  compromis,  the  parties  are  deemed 
to  have  given  to  the  arbitrators  the  power  to  decide  the 
question,  in  the  absence  of  a  stipulation  to  the  contrary. 

Article  15.  In  the  absence  of  provisions  in  the  com- 
promis  to   the   contrary,    the   arbitral   tribunal    has   the 

power : 

1.  To  determine  the  forms  and  periods  in  which  each 
party  must,  through  its  duly  authorized  representatives, 
present  its  conclusions,  establish  them  in  fact  and  in  law, 
submit  its  instruments  of  proof  to  the  tribunal,  communi- 
cate them  to  the  adverse  party,  produce  the  documents  whose 
production  the  adverse  party  requires; 

2.  To  hold  as  admitted  the  contentions  of  each  party 
which  are  not  clearly  disputed  by  the  adverse  party,  as  well 


Arbitral  Procedure 


as  the  alleged  contents  of  documents  which  the  adverse  party- 
fails  to  produce  without  sufficient  reasons; 

8.  To  order  new  hearings,  to  require  from  each  party  ex- 
planation of  doubtful  points; 

4.  To  issue  orders  of  procedure  (on  the  conduct  of  the 
case) ,  to  cause  proofs  to  be  furnished,  and,  if  necessary,  to 
call  upon  the  competent  tribunal  for  judicial  acts  for  which 
the  arbitral  tribunal  is  not  qualified,  particularly  sworn 
testimony  of  experts  and  witnesses; 

5.  To  decide,  in  its  free  discretion,  upon  the  interpreta- 
tion of  the  documents  produced  and  generally  upon  the 
worth  of  the  instnmients  of  proof  presented  by  the  parties. 

The  forms  and  periods  mentioned  under  Nos.  1  and  2  of 
the  present  article  shall  be  determined  by  the  arbitrators  in  a 
preliminary  order. 

Article  16.  Neither  the  parties  nor  the  arbitrators  can 
of  their  own  accord  involve  any  other  States  or  third  persons 
whatever  in  the  case  without  special  authorization  expressed 
in  the  compromis  and  the  previous  consent  of  the  third 
party. 

The  voluntary  intervention  of  a  third  party  is  admissible 
only  with  the  consent  of  the  parties  that  have  concluded  the 
compromis. 

Article  17.  Counter-claims  cannot  be  brought  before 
the  arbitral  tribunal  except  so  far  as  permitted  by  the  com- 
promis, or  except  when  the  two  parties  and  the  tribunal  are 
in  accord  in  admitting  them. 

Article  18.  The  arbitral  tribunal  gives  judgment 
according  to  the  principles  of  international  law,  unless  the 
compromis  imposes  upon  it  different  rules  or  leaves  the  de- 
cision to  the  free  discretion  of  the  arbitrators. 

Article  19.  The  arbitral  tribunal  cannot  refuse  to  give 
judgment  under  the  pretext  that  it  is  not  sufficiently  in- 
formed either  on  the  facts  or  on  the  legal  principles  that 
shunld  be  applied. 

It  nmst  decide  definitively  each  of  the  points  in  contro- 
versy. Nevertheless,  if  the  compromis  does  not  provide  for 
a  simultaneous  definitive  decision  of  all  the  points,  the 


m>  \ 


''] 


-I! 


!  I 


'I 


6        Resolutions  of  the  Institute  of  International  Law 

tribunal  may,  while  deciding  definitively  certain  points,  re- 
serve the  others  for  a  later  proceeding. 

The  arbitral  tribunal  may  render  interlocutory  or  pre- 
Ihninary  decrees. 

Aeticle  20.  The  delivery  of  the  final  decision  must 
take  place  within  the  time  fixed  by  the  compromis  or  by  a 
subsequent  convention.  In  the  absence  of  other  determina- 
tion, the  period  of  two  years  is  considered  as  agreed  upon, 
beginning  from  the  day  of  the  conclusion  of  the  compromis. 
The  day  of  conclusion  is  not  included  therein;  nor  is  the 
time  within  which  one  or  more  arbitrators  may  have  been 
prevented,  by  force  majeure,  from  discharging  their  duties. 
In  case  the  arbitrators,  by  interlocutory  decrees,  order  in- 
vestigations, the  time  is  increased  by  one  year. 

Article  21.  Every  final  or  provisional  decision  shall  be 
made  by  a  majority  of  all  the  arbitrators  named,  even  when 
one  or  more  of  the  arbitrators  refuse  to  take  part  therein. 

Article  22.  If  the  arbitral  tribunal  finds  that  the  con- 
tentions of  none  of  the  parties  are  established,  it  must  de- 
clare this,  and,  if  it  is  not  limited  in  this  respect  by  the  com- 
promis. it  must  lay  down  the  real  state  of  the  law  with 
respect  to  the  parties  in  dispute. 

Article  23.  The  arbitral  award  must  be  reduced  to 
writing,  and  contain  a  statement  of  reasons,  unless  that  is 
dispensed  with  under  the  stipulations  of  the  compromis.  It 
should  be  signed  by  each  of  the  members  of  the  arbitral 
tribunal.  If  the  minority  refuses  to  sign,  the  signature  of 
the  majority  is  sufficient,  with  the  written  declaration  that 
the  minority  has  refused  to  sign. 

Article  24.  The  award,  with  the  reasons,  if  stated,  is 
notified  to  each  party.  The  notification  is  effected  by  com- 
mvmication  of  a  copy  to  the  representative  of  each  party,  or 
to  an  empowered  agent  of  each  party  appointed  ad  hoc. 

Even  if  it  has  been  communicated  only  to  the  representa- 
tive or  to  the  empowered  agent  of  one  party,  the  award 
can  no  longer  be  changed  by  the  arbitral  tribunal. 

The  tribunal,  however,  has  the  right,  so  long  as  the  time 
mentioned  in  the  compromis  has  not  expired,  to  correct 


Arbitral  Procedure  7 

mere  errors  in  writing  or  reckoning,  even  when  neither  of 
the  parties  makes  a  motion  to  that  effect,  and  to  complete 
the  award  on  undecided  disputed  points  on  the  motion  of 
one  party  and  after  a  hearing  of  the  adverse  party.  An  in- 
terpretation of  the  award  as  notified  is  not  admissible  unless 
both  parties  request  it. 

Article  25.  The  award  when  duly  pronounced  decides, 
within  the  limits  of  its  scope,  the  dispute  between  the  parties. 

Article  26.  Each  party  shall  bear  its  own  expenses  and 
a  half  of  the  expenses  of  the  arbitral  tribunal,  without  regard 
to  the  decision  of  the  arbitral  tribunal  on  the  indemnity  which 
one  or  the  other  of  the  parties  may  be  adjudged  to  pay. 

Article  27.  The  arbitral  award  is  null  in  case  of  an 
invalid  compromis,  or  in  case  of  excess  of  authority,  or  of 
proved  corruption  of  one  of  the  arbitrators,  or  of  essential 
error. 


LAWS  AND  CUSTOMS  OF  WAR  ON  LAND- 
EXAMINATION  OF  THE  DECLARATION  OF 
BRUSSELS  OF  1874 ' 

Following  a  communication  made  by  Mr.  Bluntschli,  who  had  been 
one  of  the  delegates  from  the  German  Empire  to  the  Congress  of  Brussels 
for  the  reform  of  the  laws  and  customs  of  war,  the  Institute  had  appointed 
a  committee  at  its  session  in  Geneva,  1874,  to  study  the  Declaration  made 
at  that  Congress  by  the  delegates  of  the  European  States,  and  to  submit 
to  the  Institute  the  committee's  opinion  and  supplementary  propositions 
upon  this  subject.' 

To  attain  this  end  Mr.  Rolin-Jaequemyns,  in  February,  1875,  ad- 
dressed to  the  members  of  the  committee,  and  submitted  to  the  other 
members  of  the  Institute,  a  questionnaire  regarding  the  difficulties, 
general  or  special,  theoretical  or  practical,  to  which  an  examination  of 
the  Declaration  of  Brussels  might  givr  rise.^  He  then  drew  up  a  report 
in  the  form  of  a  critical  analysis  of  the  various  replies  which  were  made 
to  the  queitionnaire.  To  these  documents  were  annexed  a  revised  draft  of 
the  text  of  the  Declaration  of  Brussels,  by  Mr.  Moynier,  letters  from 
Messrs.  de  Parieu  and  W.  B.  Lawrence,  a  memorandum  by  Mr.  M.  Ber- 
nard, and  an  important  and  extensive  note  by  Mr.  Besobrasof.* 

When  the  members  o'  the  committee  had  met  at  The  Hague,  they 


'  Tableau  gfniral,  p.  155. 

'  Annuaire,  vol.  1,  pp.  35,  47. 

•  Ittrue  dt  droit  international,  vol.  vii,  pp.  438-446. 


•  Ibid.,  pp.  448-552. 


M 

ii;! 


8        Resolutions  of  the  Institute  of  International  Law 

thought  that  it  would  not  be  opportune  or  even  possible  to  enter  upon 
an  examination  of  all  the  questions  in  detail,  but  that  they  should  propose 
that  the  Institute  express  a  uniform  appreciation  of  the  general  utility  ot 
an  international  regulation  of  the  law  of  war,  and  especially  of  the  value  of 
the  Declaration  of  Brussels,  from  the  point  of  view  of  humanity  and 
science.  The  result  of  the  deliberations  of  vhe  committee  was  the  adop- 
tion by  a  majority  of  a  draft  of  resolutions  to  be  submitted  to  the  Insti- 
tute in  plenary  session.  The  Institute,  in  its  turn,  after  deliberating  in 
the  session  of  August  30,  1875,  adopted  the  draft  after  making  several 
slight  changes.' 

The  text  adopted  is  as  follows : 

Regulation  of  the  Laws  and  Customs  of  Wah 

Examination  by  the  Institute  of  the  Declaration  of 
Brussels  of  1874 ' 

1.  It  is  desirable  that  the  laws  and  customs  of  war  should 
be  regulated  by  a  convention,  declaration,  or  agreement,  of 
whatever  character  it  may  be,  among  the  different  civilized 
States. 

2.  Such  a  regulation  could  not,  it  is  true,  result  in  the 
complete  suppression  of  the  evils  and  dangers  which  war  pro- 
duces, but  it  might  mitigate  them  to  a  large  extent,  either  by 
determining  the  limits  which  the  judicial  conscience  of 
civilized  peoples  imposes  upon  the  use  of  force,  or  by  piacmg 
the  weak  under  the  protection  of  positive  law. 

8.  The  draft  Declaration  accepted  at  Brussels,  upon  the 
generous  initiative  of  His  Majesty,  the  Emperor  of  Russia, 
while  bearing  considerable  resemblance  to  the  American  in- 
structions of  President  Lincoln,  has  the  double  advantage 
over  them  of  extending  to  international  relations  a  regula- 
tion made  for  a  single  State,  and  of  containing  new  provi- 
sions, conceived  in  a  spirit  at  once  practical,  humane  and 

progressive. 

4.  Compared  with  the  law  of  war  set  forth  in  the  most 
recent  works,  the  draft  of  Brussels  is  fundamentally,  and  as 
to  all  matters  covered  by  it,  at  the  zenith  of  present-day 
science.  Doubtless  the  elasticity  or  vagueness  of  certain  ex- 
pressions may  give  rise,  from  a  legal  point  of  view,  to  rigor- 
ous criticism;  but  this  difficulty  must  be  regarded  as  an  in- 


*Annuaire,  vol.  1,  pp.  90  et  teq. 


'  IbiJ.,  y.  133. 


IjOwa  and  Customs  of  War  on  Land 


9 


evitable  consequence  of  the  necessity  of  obtaining,  above  all, 
an  agreement  among  the  various  States,  and  of  ensuring 
the  existence  of  this  agreement  by  mutual  concessions. 
Then,  too,  nothing  will  prevent  the  revision  of  the  Declara- 
tion when  an  agreement  is  reached  upon  the  improvements 
to  be  made  thereto,  when  new  theory  and  practice  have  dis- 
sipated doubts,  decided  controversies,  made  possible  the  de- 
velopment of  principles  only  the  germ  of  which  can  be 
included  in  an  agreement  to  be  executed  to-day. 

5.  If  the  methods  by  which  war  has  been  conducted  up 
to  the  present  are  examined,  the  draft  Declaration  gives 
a  glimpse  of  important  progress,  the  results  of  which  appear 
to  be  all  the  more  lasting  from  the  very  fact  that  we  refrained 
from  formulating  Utopian  voetue,  and  imposing  upon  armies, 
in  the  name  of  misunderstood  philanthropy,  requirements 
which  are  incompatible  with  their  security  and  with  the 
pursuit  of  military  operations. 

6.  The  provisions  of  the  draft  Declaration  relating  to 
the  occupation  of  enemy  territory  are  an  application  of 
this  true  principle:  that  the  mere  fact  of  occupation  does 
not  confer  any  right  of  sovereignty,  but  that  the  cessation 
of  local  resistance  and  the  retreat  of  the  national  govern- 
ment, on  the  one  hand,  and,  on  the  other,  the  presence  of 
the  invadmg  army,  create  for  the  latter  and  the  government 
which  it  represents  obligations  and  rights  which  are  essen- 
tially provisional.  Along  this  line  the  draft  tends,  above  all, 
to  lay  down  the  limits  of  these  rights  and  to  determine  these 
obligations,  which  are  dictated  by  the  necessity  of  maintain- 
ing social  order  and  protecting  the  security  of  individual  and 
private  property  during  the  temporarj'  absence  of  any  regu- 
lar government.  The  rules  drawn  up  in  this  connection  are 
doubtless  susceptible  of  improvements  as  to  detail,  but  at 
present  they  are  fundamentally  more  favorable  to  the  peace- 
ful citizens  and  public  and  private  property  of  the  occupied 
country  than  the  practice  thus  far  followed  and  the  doctrine 
of  most  authors. 

7.  The  draft  Declaration  implies  a  fundamental  dis- 
tinction among  three  categories    "  persons,  viz.:  regular  com- 


:l 


10      Resolutions  of  the  Institute  cf  International  Law 

batants,  who  must  be  treated  as  such;  peaceful  inhabitants, 
who  must  be  protected  both  in  person  and  property;  and 
irregular  combatants,  who,  not  recognizing  the  laws  of  war, 
do  not  deserve  to  be  treated  as  loyal  enemies.  This  distmc- 
tion  is  based  upon  the  present  manner  of  regarding  war, 
which  is  made  between  States  and  not  between  individuals. 
It  in  nowise  hinders  the  most  energetic  national  defense  by 
the  mass  of  the  population  in  arms.  It  even  adds  to  the 
eventual  effectiveness  of  this  defense,  by  subjecting  it  to 
requirements  of  order  and  organization  which  are  alone 
compatible  with  the  conduct  of  a  regular  war  between  civil- 
ized nations.  It  is  necessary,  to  this  end,  to  require  for  regu- 
lar combatants,  except  as  provided  in  Article  10,  a  distinctive 
mark,  fixed,  recognizable  at  a  distance,  and,  besides,  easily 
procured,  in  order  that  armies  on  the  march  may  know 
whether  they  are  facing  the  peaceful  inhabitants  whom  they 
must  protect,  or  enemies  whom  they  must  attack. 

8.  The  provisions  concerning  contributions  and  requisi- 
tions are  equally  in  advance  of  the  practice  generally 
admitted  in  prior  wars.  Article  42,  in  particular,  by  re- 
quiring that  for  every  requisition  payment  must  be  made  or 
a  receipt  given,  states  a  principle  the  consequences  of  which 
will  be  developed  in  the  future  and  by  a  more  humane 

practice. 

9.  Reprisals  are  a  regrettable,  but  inevitable  exception, 
in  certain  cases,  to  the  general  principle  of  equity  that  the 
innocent  should  not  suffer  for  the  guilty.  As  soon  as  it  is 
admitted  that  reprisals  cannot  be  completely  prohibited  it  be- 
comes desirable  that,  in  accordance  with  the  original  Russian 
draft,  they  should  be  contained  in  the  Declaration,  for  the 
purpose  of  restricting  them  according  to  the  following 
principles : 

(1)  The  method  of  making  reprisals  and  the  extent 
thereof  should  not  exceed  the  extent  of  the  infraction  com- 
mitted by  the  enemy; 

(2)  They  should  be  formally  prohibited  in  cases  where 
the  infraction  complained  of  may  have  been  repaired ; 


Law*  and  Customs  of  War  on  Land 


11 


(8)  They  should  not  be  made  without  the  authority  of 
the  commander  in  chief; 

(4)  They  should  respect  in  all  cases  the  laws  of  hu- 
manity and  morality. 

10.  The  Institute,  without  wishing  to  enter  into  a  de- 
tailed examination  of  all  the  articles  of  the  Declaration,  be- 
lieves it  may  recommend  to  the  attention  of  the  governments 
and  their  delegates,  called  upon  to  revise  and  complete  the 
work  of  the  Conference  of  Brussels,  the  observations  and 
propositions  presented  individually  by  various  members  of 
the  commission,  ami  ng  others: 

(a)  The  various  drafts  of  a  definition  of  occupation  in 
time  of  war,  particularly  the  following  definition:  "  a  terri- 
tory is  considered  as  occupied  from  the  moment  when,  as  long 
as,  and  as  completely  as,  the  State  to  which  it  belongs  is 
prevented,  by  the  cessation  of  local  resistance,  from  exercis- 
ing publicly  its  sovereign  authority  in  such  territory  " ; 

(6)  The  proposition  to  provide  that  it  is  the  duty  of 
the  military  authority  to  notify  the  inhabitants  of  occupied 
territory  as  soon  as  possible  that  the  occupation  is  established ; 

(c)  The  proposition  to  apply  the  general  principle  of 
restitution  or  indemnity  in  the  case  of  stores  of  arms  and 
ammunition  belonging  to  individuals  of  the  occupied  country, 
as  in  the  case  of  any  other  enemy  private  property; 

{d)  The  proposition  to  add  to  the  eniuneration  of 
methods  which  are  prohibited  in  time  of  war,  the  destruction 
or  laying  waste  by  flooding,  burning,  etc.,  of  a  large  part  of 
the  territory  or  permanent  products  of  the  enemy's  soil,  for 
a  temporary  purpose  of  the  war; 

(e)  The  proposition  to  take  measures  to  ensure  the 
formal  and  regular  character  of  the  receipts  delivered  to  the 
inhabitants  of  the  occupied  territory  who  have  been  forced  to 
give  loans  or  services,  contributions  or  requisitions ; 

(/)  The  voeu  that  the  different  Powers  instruct  their 
armies  in  the  rules  of  international  law. 

11.  The  Institute  adheres  to  the  following  voeux  drawn 
up  at  the  Conference  of  Brussels: 

(1)    By  General  Arnaudeau,  in  favor  of  an  agreement 


'i 


\  ?!    1 


12      Retolutiona  of  the  Institute  of  International  Laic 

among  the  Powers  to  establish  similarity  in  the  methods  of 
restraint  at  present  provided  in  their  military  codes,  and  to 
seek  some  basis  for  an  agreement  having  in  view  uniformity 
in  the  penalties  for  crimes,  torts  and  infractions  against  in- 
ternational law  (criminal  law  of  war) ; 

(2)  By  Baron  Blanc  and  Colonel  Count  Lanza,  that  all 
parts  of  the  military  regulations  concerning  the  relations  of 
belligerents  as  among  themselves,  should  be  revised  for  the 
purpose  of  unification  by  an  agreement  of  the  governments; 

(8)  By  Colonel  Brun,  to  sanction  the  following  pro- 
vision: "  After  a  battle,  the  belligerents  are  required  to  com- 
1  .unicate  to  the  adverse  party  the  list  of  the  dead  who  have 
fallen  into  their  power.  To  make  this  measure  easy  of 
application,  it  is  desirable  that  each  soldier  be  supplied  with 
a  mark  indicating  his  number  (his  name?)  and  the  name  of 
his  regiment,  as  well  as  the  number  of  his  company." ' 


lU 


INTERNATIONAL      DUTIES      OF      NEUTRAL 
STATES— RULES  OF  WASHINGTON  ' 

In  1871  the  Cabinets  of  Washington  and  St.  James  had  concluded  n 
treaty  with  regard  to  the  Alabama  case  which  fixed  the  duties  of  neutral 
States,  especially  as  regards  the  equipment  of  pi "/ateers  in  their  ports. 
At  the  session  of  Geneva,  1 874,  the  Institute  placed  upon  its  program  an 
examination  of  the  three  rules  proposed  in  the  said  treaty.  Each  of  the 
members  of  the  committee,  Messrs.  Calvo,  Hautefeuille,  Lorimer,  Rolin 
and  Woolsey,  made  a  personal  and  independent  investigation.  Mr.  Blunt- 
schli,  the  reporter,  after  having  summarized  these  studies,  proposed  a 
resolution  which,  amended  and  enlarged  by  the  commission,  served  as  n 
basis  for  the  deliberations  of  the  Institute  at  the  session  at  The  Hague." 

These  deliberations  took  place  on  the  thirtieth  of  August,  1875,*  and 
resulted  in  the  adoption  of  the  following  conclusions : 

International  Duties  of  Neuteal  States — Rules  of 

Washington  " 
1.  A  neutral  State  which  is  desirous  of  renaining  on  terms 
of  peace  and  friendship  with  the  belligerents,  and  of  enjoy- 

'  For  subsequent  action  of  the  Institute  on  the  laws  of  land  warfare,  see 
poit,  pp.  17,  25. 

•  Tableau  ginfral.  p.  161.  *  thid.,  p.  108. 

•  Annunire,   vol.    !,    p.    33.  '  ">W .  p.  139- 


International  Duties  of  Neutral  Statet  18 

ing  the  rights  of  neutrality,  must  abstain  from  taking  any 
part  whatever  in  the  war,  by  lending  military  assistance  to 
one  or  both  of  the  belligerents,  and  exercise  vigilance  to  pre- 
vent its  territory  from  becoming  a  center  of  organization  or 
point  of  departure  for  hostile  expeditions  against  one  or 
both  of  the  belligerents, 

2.  Consequently  the  neutral  State  cannot,  in  any  manner 
whatever,  put  at  the  disposal  of  any  of  the  belligerent  States, 
or  sell  to  them,  its  war  vessels  or  military  transports,  nor 
material  from  its  arsenals  or  military  stores,  for  the  purpose 
of  assisting  it  in  prosecuting  the  war.  Furthermore,  the 
neutral  State  is  bound  to  exercise  vigilance  to  prevent  other 
persons  from  placing  war  vessels  at  the  disposal  of  any  of 
the  belligerent  States  in  its  ports  or  in  those  portions  of 
the  sea  subject  to  its  jurisdiction. 

8.  When  the  neutral  State  is  aware  of  enterprises  or 
acts  of  this  kind,  incompatible  with  neutrality,  it  is  bound 
to  take  the  necessary  measures  to  prevent  them,  and  to 
prosecute  the  individuals  who  violate  the  duties  of  neutrality, 
as  the  guilty  parties. 

4.  Likewise,  the  neutral  State  should  not  permit  nor 
suffer  one  of  the  belligerents  to  use  its  ports  or  waters  as  a 
naval  base  of  operations  against  the  other,  or  permit  mili- 
tary transports  to  use  its  ports  or  waters  to  renew  or  add 
to  their  military  supplies  or  arms,  or  to  secme  recruits, 

5.  The  mere  fact  that  a  hostile  act  has  been  committed 
upon  neutral  territory  is  not  sufficient  to  make  the  neutral 
Mate  responsible.  Before  it  can  be  admitted  that  it  has 
violated  its  duty  it  must  be  shown  that  there  was  a  hostile 
intention  (rfo/««),  or  manifest  negligence  (culpa). 

6.  Only  in  serious  and  urgent  cases,  and  only  during  the 
existence  of  war,  has  the  Power  injured  by  a  violation  of 
neutral  duties  the  right  to  consider  neutrality  as  abandoned 
and  to  resort  to  force  to  defend  itself  against  the  State 
which  has  violated  neutrality. 

In  cases  of  a  minor  character,  or  where  the  matter  is  not 
urgent,  or  after  the  war  is  over,  complaints  of  this  character 
should  be  settled  exclusively  by  arbitration. 


r  •>\ 


I'  !'! 

'11    ;' 


14      Retdutiotu  of  the  Institute  of  International  Law 

7.  The  arbitral  tribunal  decides  ex  cpquo  et  bono  on  the 
questions  of  damages  which  the  neutral  State  should,  by 
reason  of  its  responsibility,  pay  to  the  injured  State,  either 
for  the  State  itself,  or  for  its  nationals  {rcMortisaantt) . 


TREATMENT    OF    PRIVATE    PROPERTY    IN 
NAVAL    WARFARE' 

At  the  icision  in  Geneva  (1874)  the  Inititute  named  a  committee, 
«t  the  suggeition  of  Mesirs.  de  Laveleye,  Mancini  and  BlunUchli,  to 
ftudy  the  question  of  re»pect  for  private  property  at  »ca.  This  com- 
mittee met  the  next  year  at  The  Hague,  under  the  presidency  of  Mr.  dc 
Laveleye,  reporter,  who  submitted  to  it  a  memoir  upon  this  subject;' 
at  the  same  time  Mr.  Pierantoni  presented  to  the  committee  a  report  upon 
"  Maritime  priaes  according  to  the  Italian  school  and  legislation,"  which, 
being  thorough,  served  as  the  basis  for  the  study  of  this  particular  topic, 
which  the  Institute  then  undertook.*  At  the  session  at  The  Hague,  the 
Institute  considered  in  the  plenary  session  of  August  SI,  1873,*  the  con- 
clusions proposed  by  the  committee  and  adopted  the  following  text:  ' 

1.  The  principle  of  the  inviolability  of  enemy  private 
property  sailing  under  a  neutral  flag  should  be  considered 
henceforth  as  fixed  in  the  domain  of  the  positive  law  of 
nations. 

2.  It  is  desirable  that  the  principle  of  the  inviolability  of 
enemy  private  property  sailing  under  the  enemy  flag  should 
be  universally  accepted  in  the  following  terms,  taken  from 
the  declarations  of  Prussia,  Austria  and  Italy  in  1866,  and 
under  the  reservation  hereinafter  stated,  sub  8: 

Merchant  vessels  and  their  cargoes  cannot  be  captured 
unless  they  carry  contraband  of  war  or  unless  they  try 
to  violate  an  effective  and  declared  blockade. 

8.  It  is  understood  that  in  accordance  with  the  general 
principles  which  should  govern  naval  war  as  well  as  land 


:li 


■  TahX$avi  gin4ral.  p.  190. 

'Retvt  dt  droit  international,  vol.  vil,  pp.  560-602. 

•Annvaire.  vol.  1.  n.  48:  vol.  i,  p.  «. 


'Ibid.,  vol.  1,  p.  US. 
•  Ibid.,  p.  118. 


Treatment  of  Private  Property  in  Xaval  Warfare    la 

warfare,  the  preceding  provision  is  not  applicable  to  mer- 
chant vessels  which,  directly  or  indirectly,  take  part  in  or  are 
intended  to  take  part  in  hostilities. 


At  thli  same  lesaion  the  Institute  referred  to  the  committee  of  which 
Mr.  de  Laveleye  was  reporter,  a  question  raised  by  Mr.  Bluntschli  in  the 
following  language:  "  Having  regard  to  the  necessities  of  naval  warfare, 
what  should  be  the  restrictions  which  should  be  placed  upon  the  principle 
of  the  inviolability  of  enemy  private  property,  in  harmony  with  what  has 
been  done  on  the  same  subject  in  land  warfare  with  regard  to  railroads  and 
other  means  of  military  transportation?"  Mr.  de  Laveleye,  being 
obliged  to  resign  his  office  on  account  of  his  health,  was  replaced  by  Mr. 
Bulmerincq  as  reporter,  and  the  latter  submitted  a  draft  and  conclusions  * 
to  the  Institute  at  the  session  in  Ziirich  (1877). 

These  conclusions  were  discussed  in  the  plenary  session  of  September 
11,  1877,'  and  adopted  in  the  following  form:' 

1.  Neutral  or  enemy  private  property  sailing  under 
enemy  or  neutral  flag  is  inviolable. 

2.  The  following  are  always  subject  to  seizure:  objects 
intended  for  war  or  susceptible  of  being  immediately  em- 
ployed therein.  Belligerent  governments  shall  in  every  war 
determine  in  advance  what  articles  they  will  consider  within 
the  above  description.  Merchant  vessels  which  have  taken 
part  in  the  hostilities,  or  are  in  condition  to  take  such  part 
immediately,  or  which  have  run  a  blockade  which  was  de- 
clared and  was  effective,  are  also  subject  to  seizure. 

8.  A  blockade  is  effective  when  it  results  in  preventing 
access  to  the  blockaded  port  by  means  of  a  sufficient  number 
of  war  vessels  stationed  there,  or  absent  from  such  station 
only  temporarily.  There  is  a  breach  of  the  blockade  when 
a  merchant  vessel,  having  information  of  the  blockade,  at- 
tempts by  force  or  strategy  to  penetrate  the  line  of  the 
blockade. 

4.   Privateering  is  forbidden. 

„?■    '^^^  ^'^^*  °^  ^'^'*  "i^y  ^  exercised  by  war  vessels  of 
belligerent  Powers  on  merchant  vessels  with  a  view  to  ascer- 


'Ibid.,  p    110. 


'  Ibid.,  vol.  2,  p.  58. 


•  Ibid.,  p.  152. 


f 


16      ReidutioM  of  the  Itutitute  of  Intermtional  Law 

taining  their  nationality,  searching  for  objects  susceptible  of 
capture,  or  to  prove  a  breach  of  blockade.    The  right  of  visit 
may  be  exercised  from  the  moment  the  declaration  <»f  war 
is  published  until  the  conclusion  of  peace.    It  is  suspended 
during  a  truce  or  armistice.    It  may  be  exercised  within  the 
waters  of  belligerents  as  well  as  upon  the  high  seas,  but  not 
as  to  neutral  war  vessels,  nor  as  to  those  which  ostensibly 
belong  to  a  neutral  State.    The  commander  of  the  vessel 
which  makes  the  visit  should  limit  himself  to  an  examination 
of  the  ship's  papers.    He  has  no  authority  to  make  a  search 
of  the  vessel  if  the  ship's  papers  do  not  furnish  ground  for 
the  suspicion  of  fraud,  or  furnish  the  proof  thereof,  or  unless 
there  are  serious  grounds  for  presuming  that  objects  intended 
for  war  are  on  board. 


COMPROMIS   CLAUSE* 


In  a  letter  written  September  4,  1877,  to  the  President  of  the  In- 
stitute, Mr.  Mancini,  at  that  time  Italian  Minister  of  Finance,  expressed 
the  hope  "  that  it  would  be  possible  to  insert  in  most  of  the  treaties  of 
commerce  and  navigation  now  being  negotiated  between  Italy  and  foreign 
governments  a  compromii  clause  wheri'hy  the  high  contracting  parties 
would  mutually  bind  themselves  to  submit  to  the  peaceful  method  of 
arbitration  the  settlement  of  controversies  which  might  arise  concerning 
the  interpretation  and  the  application  of  the  treaties."  ' 

At  its  Zurich  meeting,  the  Institute  saw  in  this  important  statement, 
an  opportunity,  not  only  of  expressing  a  ti<ru  in  favor  of  the  general 
application  of  the  system,  but  also  of  recalling  its  deliberations  on  tin- 
subject  of  the  procedure  to  be  followed  in  courts  of  arbitration.  There- 
fore, in  iU  session  of  September  12,  1877,  on  the  motion  of  Mr.  Bluntschli, 
it  adopted  the  following  resolution :  ' 

International  Abbiteation — Compbomis  Clause 

The  Institute  of  International  Law  urgently  recommends 
the  insertion  in  future  international  treaties  of  a  comproniis 
clause  stipulating  recourse  to  arbitration  in  case  of  a  dispute 

'■Tableau  giniral,  p.  131.  ' Ibid.,  vol.  2,  pp.  147,  160. 

'  Annuaire,  vol.  J,  p.  IB. 


Compromis  Clame 


17 


eoncerning   the    interpretation   and    application   of   these 
treaties. 

The  Institute  further  proposes  that,  in  consideration  of 
the  difficulty  that  the  parties  might  have  in  agreeing  in 
advance  upon  the  procedure  to  !)c  followed,  the  following 
provision  be  added  to  the  compromu  clause: 

If  the  contracting  States  have  not  agreed  in  advance 
upon  other  provisions  regarding  the  prwedure  to  be  fol- 
lowed in  the  court  of  arbitration,  the  regulations  sanc- 
tioned by  the  Institute  at  The  Hague,  August  28,  1875, 
shall  be  applied. 


REGULATION  OF  THE  LAWS  AND  CUSTOMS 

OF  WAR' 

After  having  adopted  at  the  meeting  at  The  Hague  the  Retolutiont 
reproduced  above'  regarding  the  Declaration  of  Brussels  of  1874,  the 
Institute  instructed  the  same  committee  "  at  occa*ion  offered  to  follow  out 
the  progress  of  regulation  of  the  laws  and  customs  of  war."  The  ooni- 
raittee  did  not  have  occasion  to  make  any  study  of  the  subject  during  the 
following  years.'  When  war  broke  out  in  1877  between  Russia  and 
Turkey  the  Bureau,  at  the  suggestion  of  Mr.  Moynier,  published  an 
Appeal  to  belligerents  and  to  the  press,"  drawn  up  by  Messrs.  Bluntschli, 
Moynier  and  Rolin-Jaequemyns,  for  the  purpose  o"f  recalling  the  fact 
that  a  law  of  war  exists,  still  imperfect  of  course,  but  requiring  at  pres- 
ent that  belligerents  observe  certain  rules  which  are  clearly  determined  " 
and  of  indicating  such  rules  as  should  be  henceforth  considered  part  of 
public  European  law.* 

The  Institute  at  its  session  in  Ziirieh  was  called  upon  to  pass  upon 
the  circular  which  the  Bureau  had  published  in  its  name,  and  at  the 
session  of  September  11,  1877,  it  ratified  unanimously  the  text  and  the 
publication  thereof.*  It  then  went  into  the  question  as  to  whether  there  was 
any  reason  to  confirm  this  circular  by  a  more  elaborate  Declaration,  which 
emild  be  inserted  in  its  minutes  and  made  public;  after  deciding  in  favor 
of  this  plan.  It  appointed  Messrs.  Moynier  and  Rolin-Jaequemyns  to  draw 
up  the  text  of  this  Declaration. 

This  text  was  adopted  at  the  session  of  September  12,  1877.  in  the 
following  form :  • 


'  Tableau  gin^rat,  p.  163. 

'Ante,  p.  8. 

'  Annuaire,  vol.  3,  p.  131. 


*  tbid,,  p.  133. 
'Ibid.,  j>.  13.1. 

•  Ibid.,  p.  141. 


i: 


I  i 


4 

;  i 
i  i 


18      Resolutions  of  the  Institute  of  International  Law 

Appucation  of  the  Law  of  Nations  to  the  Wae  of  1877 
Between  Russia  and  Turkey  ' 

The  Institute  of  International  Law,  assembled  for  its 
regular  meeting  at  Zurich,  declares  that  it  approves,  and 
ratifies  in  the  most  complete  manner,  the  "  Appeal  to  bel- 
ligerents and  to  the  press  "  published  in  its  name  by  its 
Bureau,  on  May  28,  1877. 

Inspired  by  the  idea  which  dictated  the  above  act,  the 
Institute  believes  it  should  not  bring  its  present  session  to  a 
close  without  raising  its  voice  again  in  favor  of  law  and  hu- 
manity. The  Institute,  however,  is  determined  to  limit  itself 
to  its  proper  sphere  and  will  not  express  any  collective  opin- 
ion concerning  the  facts  which  have  actually  brought  about 
war  between  Russia  and  Turkey,  nor  upon  the  measures  to  be 
taken  for  satisfying  by  means  of  treaties  the  legitimate 
interests  involved  in  the  conflict. 

This  assembly  believes  it  can  profitably  consider  positive 
international  law,  binding  upon  all,  and  not  decisions  arrived 
at  as  matters  of  policy  or  diplomacy,— and  especially  the 
laws  of  war,  accurately  defined  by  the  act  of  May  28,  their 
recognition  and  application.  Even  in  this  limited  sphere  it 
will  abstain  from  any  opinion  which  may  not  be  founded 
upon  irrefutable  proof. 

On  both  sides  the  belligerents  accuse  each  other  of  fail- 
ing to  recognize  the  laws  of  war.  Each  day  brings  to  us  a 
detailed  recital  of  new  horrors.  Unfortunately,  even  if  it 
must  be  recognized  that  the  greater  number  of  these  deeds, 
which  are  so  disgraceful  to  our  age  and  cause  us  to  view  the 
future  with  alarm,  are  only  too  real,  the  means  of  seeking  the 
truth  in  each  particular  case  are  most  often  lacking. 

The  Institute  therefore  cannot  consider  giving  itself  up 
to  an  impossible  inquiry,  based  upon  a  daily  increasing  num- 
ber of  impassioned  charges.  But  it  is  a  different  question 
which  an  association  of  jurisconsults,  created  to  "  promote 
the  progress  of  international  law,"  should  meet  and  has  the 
means  to  solve.    That  question  is  as  to  how  far  the  bellig- 

'  AnnvMtrt,  vol.  9.  p.  154. 


■fi. 


Regulation  of  the  Laws  and  Customs  of  War        19 

erents  have  gone  to  assure  themselves  so  far  as  possible  of 
the  recognition  and  observance  of  the  laws  of  war  by  their 
respective  armies. 

Here  are  the  unquestioned  facts  on  this  point. 

Ahnost  at  the  moment  that  the  "  Appeal  to  belligerents 
and  to  the  press  "  appeared,  an  imperial  ukase,  dated  May 
12/24i,  1877,  ordered  all  the  civil  and  military  authorities  of 
the  Russian  Empire  to  observe  not  only  the  Geneva  Conven- 
tion of  1864  and  the  Declaration  of  St.  Petersburg  of  1868, 
but  also  the  principles  proclaimed  by  the  Conference  of 
Brussels,  1874. 

The  same  conventions  and  the  same  principles  have  been 
brought  to  the  attention  of  the  Russian  troops  by  means  of 
a  sort  of  military  catechism,  in  the  form  of  questions  and 
answers,  published  June  1/18,  1877,  in  the  Recueil  militaire 
russe.  the  official  organ  of  the  Ministrj'  of  War.  This  pub- 
lication was  issued  in  several  thousand  copies  and  distributed 
th  Migh  the  active  army. 

she  Russian  Government  finally  published  on  July 
10/22,  1877,  a  "  Regulation  concerning  prisoners  of  war," 
which  sanctions  the  most  humane  rules  of  the  law  of  nations 
as  obligatory  upon  its  armies. 

In  connection  with  these  acts,  which  prove  at  least  the 
efforts  made  by  the  Russian  Government  to  remove  any 
pretext  for  ignorance  on  the  part  of  its  soldiers,  and  to 
show  them  that  the  observation  of  the  laws  of  war  is  a  part 
of  their  professional  duties,  the  Institute  regrets  that  it  is 
obliged  to  say  that  no  official  act  has  come  from  the  Turkish 
Government  for  the  purpose  of  bringing  clearly  to  the 
knowledge  of  its  troops  the  customary  law,  especially  the 
provisions  of  this  law  formulated  in  the  draft  of  the  Declara- 
tion of  Brussels. 

Is  the  situation  any  different  where  the  written  law  is  con- 
cerned, that  is,  the  Geneva  Convention  ?  Unhappily,  no.  The 
very  text  of  this  treat>'  has  just  been  translated  into  Turkish 
for  the  first  time  only  after  the  representations  of  several 
neutral  Powers,  signatories  of  the  same  act.  It  is  not  rash 
to  assert  that  the  Turkish  troops  are  ignorant  of  their  obli- 


m   ^i 


hi  '' :' 


20      Rctfolutiom  of  the  Imtitute  of  International  Lata 

gations  in  this  regard,  when  the  Government  itself  pays  no 
attention  thereto.  In  fact,  a  letter  from  Safvet  Pasha, 
Minister  of  Foreign  Affairs,  to  the  Swiss  Federal  Council, 
dated  November  16,  1876,  contains  the  sentence:  "As  a 
signatory  of  the  Geneva  Convention  Turkey  agreed  to  re- 
spect and  protect  the  ambulances  of  the  Red  Cross  So- 
ciety, at  the  same  time  that  she  acquired  the  right  to  form 
societies  herself  having  the  same  purpose  and  governed  by 
the  same  rules  "1  It  is  well  known  that  the  convention  of 
1864  does  not  concern  societies  of  this  character. 

We  may  also  be  astonished  that  the  Porte,  which  was  a 
signatory  of  the  Geneva  Convention  from  July  5, 1865,  and 
which  tacitly  ratified  it  by  the  silence  of  its  representatives  at 
Brussels  in  1874,  waited  until  the  end  of  1876  before  per- 
ceiving that  the  Red  Cross  "  wounds  the  susceptibilities  of 
the  mussulman  soldier."  (Dispatch  above  cited,  Novem- 
ber 16.) 

It  is  true  that  on  June  18,  1877,  the  Turkish  Govern- 
ment, after  having  begun  by  substituting  by  its  own  authority 
the  Crescent  for  the  Red  Cross  in  its  field  hospitals,  affirmed 
in  another  dispatch  to  the  Swiss  Federal  Government  that 
formal  instructions  had  just  been  issued  to  the  Ottoman 
troops  to  respect  the  Red  Cross  of  the  Russians. 

The  Institute,  while  gratifie<l  at  this  recognition  of  an 
international  obligation,  regrets  that  it  is  not  informed  as 
to  *he  tenor,  or  the  date  of  the  instructions  in  question. 
Neither  can  it  refrain  from  noting  that  more  than  two 
months  after  the  dispatch  of  the  thirteenth  of  June,  Ger- 
many and  several  other  Powers  which  were  signatories  of 
the  Geneva  Convention  found  it  necessary  to  remind 
Turkey  of  the  observance  of  its  contractual  agreements. 

It  is  not  the  sphere  of  the  Institute  to  inquire  whether 
one  or  the  other  of  the  belligerents  considered  the  violation, 
or  permission  to  violate,  the  laws  of  war  by  its  troops.  But 
outside  the  question  of  good  faith  there  is  a  question  of  re- 
sponsibility which  may  result  either  from  neglecting  the  in- 
struction of  troops,  or  from  the  employment  of  savage  hordes 
incapable  of  conducting  a  regular  war.    It  is  the  duty  o*" 


Regulation  of  the  Laws  and  Customs  of  War       21 

States  which  call  themselves  civilized  and  form  part  of  the 
concert  of  Europe  to  reject  absolutely  the  use  of  such 
auxiliaries.  A  Government  which  owes  its  victory  to  them 
makes  itself  an  international  outlaw.  It  would  become  re- 
sponsible for  all  those  evil  instincts  which  it  did  not  suppress, 
for  all  that  barbarism  against  which  it  had  not  reacted. 

The  Institute  could  not  therefore  accept  as  a  valid  excuse 
one  which  threw  upon  irregular  troops,  Bashi-Bazouks, 
Circassians,  Kurds  or  others,  responsibility  for  the  alleged 
cruelties.  If  these  troops  are  absolutely  incapable  of  con- 
ducting themselves  like  human  and  rational  beings  the  mere 
fact  of  employing  them  is  a  grave  infraction  of  the  laws 
of  war,  as  all  authors  have  unanimously  taught  for  some 
time.  If  this  absolute  incapacity  does  not  exist,  then  the 
belligerent  which  utilizes  these  troops  must  control  them. 

The  Institute,  by  calling  attention  to  these  abuses  and 
in  protesting  against  their  continuance,  is  far  from  desirous 
of  aggravating  the  disagreements  and  calling  forth  useless 
reprisals.  Animated  by  an  ardent  love  of  peace  and  justice 
the  Institute  intends  only  to  employ  all  of  its  influence  which 
it  owes  to  its  organization,  to  its  antecedents,  to  the  special 
studies  of  its  members,  to  indicate  what  it  believes  would 
prevent  modern  wars  from  presenting  a  degrading  spectacle 
of  ferocity  and  bestiality  pushed  to  their  utmost  bounds, 
while  exhibiting  at  the  same  time  the  noblest  examples  of 
courage,  patriotism  and  charity. 

In  this  spirit  the  Institute  expresses  the  following 
voeux: 

1.  That  the  various  States  mutually  bind  themselves  by 
contract  to  observe  certain  laws  and  customs  of  war,  as  a 
complement  to  the  work  commenced  at  Brussels  in  1874, 
aiid  in  accordance  with  the  conclusions  adopted  by  the  In- 
stitute at  The  Hague  in  1873; 

2.  That  the  laws  and  customs  of  war,  to  be  formulated 
in  a  treaty,  be  by  that  very  fact  placed  under  the  protection 
of  all  of  the  European  States,  and  that  the  latter,  with  a  view 
to  enlightening  opinion,  develop,  if  possible,  an  organiza- 
tion of  military  attaches  conmiissioned  to  follow  belligerent 


iii 

ilimM 

i!M|{l 

P'PI 

j>';J 

■■i 

■   ? 

22      Reaolutions  of  the  Institute  of  Intermtiotwl  Law 

armies  and  to  inform  their  governments  of  serious  infrac- 
tions against  the  laws  of  war  which  they  may  find  An  excel- 
lent example  of  this  was  given  by  the  English  government 
when  it  published  the  reports  of  Colonel  Wellesley; 

8  That  the  various  governments  take  such  measures  as 
are  necessary  to  bring  these  laws  and  customs  to  the  m- 
dividual  Ic^owledge  of  the  officers  and  soldiers  m  their 

service;  ^  ,      ... 

4.  That  as  an  administrative  measure  to  guarantee  that 
special  information  has  been  given  to  the  chiefs  of  corps,  at 
least,  each  officer,  before  entering  a  campaign,  should  sign 
a  proch-verhal  stating  that  he  has  read  an  instruction  re- 
lating to  the  laws  and  customs  of  war,  and  that  he  has  also 
received  a  copy  of  this  instruction.^ 


ORGANIZATION     OF     AN     INTERNATIONAL 
PRIZE  COURT' 

At  the  SMsion  at  The  Hague,  the  Institute,  at  the  suggestion  of  Mr. 
WcsUake,  formed  a  committee  for  the  purpose  of  '*'"''y;''R  «  P'»"/°' 
the  organization  of  an  international  prise  court  and  named  Mr.  Westlakr 

'*'^At^'he  session  at  Zurich.  Mr.  Westlake  presented  a  draft  which  he 
could  not  personally  be  present  to  defend.  At  the  plenary  session  of 
September  IS.  1877.  the  Institute  adopted  three  resolutions  drawn  up  by 
Messrs.  Bluntschli  and  Rolin-Jaequemyns,'  and  instructed  Mr.  Bulmerincq 
to  draw  up  after  the  session  a  report  upon  the  question  and  the  resolutions 
adopted.  This  report  is  inserted  in  the  Annuaire.^ 
The  resolutions  adopted  arc  as  follows: 

Plan  for  Organization  of  an  International  Court  oi 

Prize  " 

The  Institute  declares  that  the  present  system  of  courts 
and  administration  of  justice  in  matters  of  prize  is  defective, 
and  considers  the  matter  of  remedying  this  state  of  things 

n^  subsequent  action  by  the   Institute  on  the  law  of  land  warfare,  see 
,25  • /bid.,  vol.  2.  p.  124. 

•  TahUnu  g^M,  ,,.  193.  '  /ftW-  PP-  »"  "  '"?• 


Annuairf,  vol.  1,  p.  \i\. 


*  Ibid.,  p.  153. 


Organization  of  an  International  Prize  Court       28 

by  a  new  international  institution  an  urgent  one.    It  is  of 
the  opinion  that  there  is  ground  for: 

1.  Formulating  in  a  treaty  the  general  principles  ap- 
plicable to  prize  matters; 

2.  Replacing  the  courts  hitherto  exclusively  composed 
of  judges  belonging  to  the  belligerent  State  by  international 
tribunals  which  would  give  to  the  interested  individuals  of 
the  neutral  or  enemy  State  the  broadest  guaranties  of  an 
impartial  decision; 

8.  Agreeing  upon  a  common  procedure  to  be  adopted 
in  prize  matters. 

However,  the  Institute  believes  it  should  declare  that  at 
present  it  would  consider  the  establishment  of  mixed  tribu- 
nals, whether  of  first  instance  or  of  appeal,  on  the  basis  of 
the  draft  worked  out  by  Mr.  Westlake,  as  a  step  in  advance. 


INTERNATIONAL  PROTECTION  OF  THE  SUEZ 

CANAL' 


At  the  time  of  the  war  between  Russia  and  Turkey,  the  Institute 
thought  it  useful  at  its  session  in  Zurich,  September  18,  1877,  to  instruct 
a  committee  to  study  the  methods  by  which  the  Suez  Canal  might  regu- 
larly and  finally  be  withdrawn  from  the  jurisdiction  of  the  common  law 
of  war.'  Sir  Travers  Twiss,  who  was  named  as  reporter  thereof,  pre- 
sented a  memoir  on  the  question  at  the  session  of  Paris,  1878.*  This 
memoir  containing  no  draft  of  resolutions,  the  Institute  instructed  the 
committee  to  prepare  a  draft  for  the  following  session.* 

At  the  session  of  Brussels,  Sir  Travers  Twiss,  in  collaboration  with 
Mr.  Martens,  presented  a  second  report,  following  which  the  committee 
drew  up  a  draft  of  retolutiont.  which  was  adopted  by  the  Institute  in 
plenary  session  on  September  4,  1379,  with  the  recommendation  that  they 
I'c  communicated  to  Mr.  Ferdinand  de  Lesseps  personally  and  to  the 
Compagnie  univer telle  du  'anal  de  Suee. 

Resolutions  ' 

1.  It  is  of  general  interest  to  all  nations  that  the  main- 
tenance and  use  of  the  Suez  Canal  for  all  kinds  of  communi- 


'  Ttthltau  gfniral,  p.  fti. 
'  Annuairt,  vol,  2,  p,   147. 


•  Ibid.,  vol.  3,  p.  111. 
'Ibid.,  p.    138. 


•  md.,  p.  349. 


I  i;!';! 


i 


i    (• 


24      Resolution»  of  the  Institute  of  Intermtional  Law 
cation  shaU  be  protected  as  much  as  possible  by  conventional 

^Tror'S.ls  purpose  it  is  desirable  that  States  unite  with 
a  view  to  avoiding  as  much  as  possible  any  measure  which 
miy  dama^  or  put  in  danger  the  canal  and  its  appendages 

even  in  case  of  war.  ,       *  *u«  r^^ 

8  If  a  Power  should  damage  the  works  of  the  Com- 
pagnie  universelle  du  canal  de  Suez,  it  shall  be  required  as 
fmatter  of  law  to  repair  the  damage  caused  ««  P'omptly 
as%ible,  and  to  restore  full  liberty  of  navigation  of  the 
canal. 


SUBMARINE   CABLES' 

At  the  session  of  Paris,  in  1878,  Mr.  Renault  had  proposed  the  forma- 

having  an  international  importance  ^^^ 

This  proposition  was  accepted  by  the  Insmuic  ■™  '"  „ 

namid  re^rt^r  of  the  commission.     At  t^e  BT-1.  se  -n  .n  m9  M. 

S^it  iJ^yTcLlu-si^  tr/nstuJ^fU  IV^ation  in  plenary 
Lssi^ptember  5.  1879.  adopted  the  following  resoluUons :  * 

1  It  would  be  verv  advantageous  if  the  several  States 
would  agree  to  declare  that  the  destruction  or  mjury  of  sub- 
male  cables  in  the  high  seas  is  an  offense  agamst  the  aw  o 
nat bns  and  to  determine  in  a  precise  manner  the  criminal 
charac t'er  of  the  acts  and  the  applicable  penaUies;  with  re- 
Jird  to  tWs  latter  point  a  degree  of  uniformity  compatible 
$"th  the  diversity  o  criminal  legislations  would  be  sought. 

The  right  of  seizing  persons  who  are  guilty  or  presumed 
to  be  guiUy  might  be  granted  to  government  ships  of  a 
natbns  uX  conditions  regulate<l  by  treaties;  but   he  r.gh 
to  pass  judgment  upon  them  should  be  reserved  to  the 
national  courts  of  the  captured  vessel. 


>  .-Innuaire.  -n).  -20,  p.  345. 
•  lOid.,  vol.  3,  J).  14a. 


•  Ibid..  l>p.  341.  383. 

*  IbiJ.,  p.  394. 


m 


Submarine  Cablet  25 

2.  A  submarine  telegraphic  cable  uniting  two  neutral 
territories  is  inviolable. 

It  is  desirable,  when  telegraphic  communications  must 
cease  by  reason  of  a  state  of  war,  that  the  measures  taken 
be  only  those  strictly  necessary  to  prevent  use  of  the  cable 
and  that  they  be  withdrawn,  or  that  their  consequences  be  re- 
paired, as  soon  as  cessation  of  hostilities  permits.' 


LAWS  AND  CUSTOMS  OF  WAR  ON  LAND » 

Motion  of  Mr.  Rolin-Jakqubmynr  at  the  Parh  Seuion 

At  the  Paris  session  (1878)  Mr.  Rolin-Jacqucmyns  rccoinmcnded  to 
the  attenUon  of  the  Institute  "  the  study  of  the  codes  and  regulations 
which  the  governments  of  several  countries  have  recently  drawn  up  for 
their  armies  and  in  which  is  prescribed  the  observation  of  the  laws  and 
customs  of  war." ' 

Mr.  Moynier  undertook  this  study  and  presented  to  the  Institute  at 
the  Brussels  session  (1879)  a  report,*  to  which  was  added  a  note  by  Mr. 
Hornung.'  After  a  thorough  discussion  of  the  conclusions  in  Mr.  Moy- 
nier's  report  during  the  meetings  of  September  2  and  S,  1879,  the  Institute 
directed  the  committee  which  for  several  years  had  been  occupied  with 
these  questions  to  draw  up  a  Manual  of  the  law*  and  custom*  of  uar* 

This  work,  drawn  up  by  Mr.  Moynier,  the  reporter,  was  first  com- 
municated in  proof  sheets  to  all  the  members  and  associates  of  the  Insti- 
tute. Then  it  was  discussed  by  the  committee  in  meetings  held  for  the 
purpose  at  Heidelberg,  June  18-20,  1880,  and  was  finally  submitted  to  the 
Institute  at  its  Oxford  session  September  9,  1880,  with  a  second  report  of 
Mr.  Moynier.'  On  motion  of  Mr.  Neumann  the  Manual »  as  thus  prepared 
was  adopted  as  a  whole  in  the  same  meeting  by  unanimous  vote  of  the 

•  For  subsequent  action  of  the  Institute  on  the  subject  of  cables,  see  poit, 
p.  161. 

•  Tabltau  gtniral,  p.  169. 

•  Annwiirt,  vol.  3,  p.  311. 

•  Ibid.,  pp.  312-320. 

•  Ibid.,  p.  320. 

•  Ibid.,  pp.  326  »t  itq. 
'  Ibid.,  vol.  4,  p.  150. 

'The  present  Manual  was  worked  out  by  a  ronunittee  in  whose  labors  the 
following  participated:  Messrs.  M.  Dernard  (Great  Britain),  J.  C.  Bluntschli 
(Orrmany),  den  Beer  Poortugael  (Netherlands).  W.  E.  Hail  (Great  Britain), 
T.  E.  Holland  (Great  Britain).  N.  Landa  (Spain).  Ch.  Lucas  (France).  F. 
Martens  (Russia),  L.  Neumann  (Austria).  A.  Pierantoni  (Italy).  A.  Rivier 
(SaitErrland),  H.  Schulic  (Germany).  C.  Moynier   (SwiUerland),  reporter. 


26      Reaolutiotu  of  the  Inttitute  of  International  Law 

member!  Dreicnt,  and  the  Bureau  wai  directed  to  communicate  it  to  the 
S>"r5  G;vTnm;nt.  of  Europe  and  America,  adding  thereto  a  letter  of 
transmittal  and  Mr.  Moynleri  lait  report.' 

The  Laws  of  War  on  Land' 

MANUAL  PUBLISHED  BY  THE   INSTITUTE  OF   INTERNATIONAL 

LAW 

Preface 

War  holds  a  great  place  in  history,  and  it  is  not  to  be 
supposed  that  men  will  soon  give  it  up-in  spite  of  the 
protests  which  it  arouses  and  the  horror  which  it  inspires— 
because  it  appears  to  be  the  only  possible  issue  of  disputes 
which  threaten  the  existence  of  States,  their  liberty,  their 
vital  interests.  But  the  gradual  improvement  in  custonis 
should  be  reflected  in  the  method  of  conducting  war.  It  is 
worthy  of  civilized  nations  to  seek,  as  has  been  well  said. 
'•  to  restrain  the  destructive  force  of  war,  while  recognizing 
its  inexorable  neces.«sities." 

This  problem  is  not  easy  of  solution ;  however,  some  points 
have  already  been  solved,  and  very  recently  the  draft  of 
Declaration  of  Brussels  has  been  a  solemn  pronouncement 
of  the  good  intentions  of  governments  in  this  connection. 
It  may  be  said  that  independently  of  the  international  laws 
existing  on  this  subject,  there  are  to-day  certain  principles 
of  justice  which  guide  the  public  conscience,  which  are  mani- 
fested even  by  general  customs,  but  which  it  would  be  well 
to  fix  and  make  obligatory.    That  is  what  the  Conference 
of  Brussels  attempted,  at  the  suggestion  of  His  Majesty  the 
Emperor  of  Russia,  and  it  is  what  the  Institute  of  Inter- 
national Law,  in  its  tir  n,  is  trying  to-day  to  contribute.    Tlie 
Institute  attempts  this  although  the  governments  have  not 
ratified  the  draft  issued  by  the  Conference  at  Brussels,  be- 
cause since  1874  ideas,  aided  by  reflection  and  experience, 
have  had  time  to  mature,  and  because  it  seems  less  diflicult 
Man  it  (lid  then  to  trace  rules  which  would  be  acceptable  t  > 
all  peoples. 


^  Annua.rt,  vol.  A,  p.   166. 


'/6irf.,  \).  157. 


*  Baron  Jomitti. 


Lavot  and  Customs  of  War  on  Land 


27 


The  Institute,  too,  does  not  propose  an  international 
treaty,  which  nii^ht  perhaps  be  premature  or  at  least  very 
difficult  to  obtain;  but,  Wmg  bound  by  its  by-laws  to  work, 
among  other  things,  for  the  observation  of  the  laws  of  war, 
it  believes  it  is  fulHlling  a  duty  in  offering  to  the  governments 
a  Manual  suitable  as  the  basis  for  national  legislation  in  each 
State,  and  in  accord  with  Ixith  the  progress  of  juridical 
science  and  the  needs  of  civilized  armies. 

Rash  and  extreme  rules  will  not,  furthermore,  be  found 
therein.  The  Institute  has  not  sought  innovations  in  draw- 
ing up  the  Manual:  it  has  cr)ntented  itself  with  stating 
clearly  and  codifying  the  accepted  ideas  of  our  age  so  far 
as  this  has  appeared  allowable  and  practicable. 

By  so  doing,  it  lielievcs  it  is  rendering  a  service  to  mili- 
tary men  themselves.  In  fact,  so  long  as  the  demands  of 
opinion  remain  indeterminate,  belligerents  are  exposed  to 
painful  uncertainty  and  to  endless  accusations.  A  positive 
set  of  rules,  on  the  contrarj',  if  they  are  judicious,  serves  the 
interests  of  belligerents  and  is  far  from  hindering  them,  since 
by  preventing  the  unchaining  of  passion  and  savage  instincts 
—which  battle  always  awakens,  as  much  as  it  awakens  cour- 
age and  manly  virtues, — it  strengthens  the  discipline  which 
is  the  strength  of  armies;  it  also  ennobles  their  patriotic  mis- 
sion in  the  eyes  of  the  soldiers  by  keeping  them  within  the 
limits  of  respect  due  to  the  rights  of  humanity. 

But  in  order  to  attain  this  end  it  is  not  sufficient  for 
sovereigns  to  promulgate  new  laws.  It  is  essential,  too,  that 
they  make  these  laws  known  among  all  people,  so  that  when 
a  war  is  declared,  the  men  called  upon  to  take  up  arms  to 
defend  the  causes  of  the  belligerent  States,  may  be  thor- 
oughly impregnated  with  the  special  rights  and  duties  at- 
tached to  the  execution  of  such  a  command. 

The  Institute,  with  a  view  to  assisting  the  authorities 
in  accomplishing  this  part  of  their  task,  has  given  its  work 
a  popular  form,  attaching  thereto  statements  of  the  reasons 
therefor,  from  which  the  text  of  a  law  may  be  easily  secured 
when  desired. 


I 


S8      Resolution*  of  the  Institute  of  International  Law 

THE  LAWS  OF  WAR  ON  LAND 

Pakt  I. — Genexal  Phinciples 

Akticle  1.  The  state  of  war  does  not  admit  of  acts  of 
violence,  save  between  the  armed  forces  of  belligerent  Spates. 

Persons  not  forming  part  of  a  belligeren,  armed  force 
should  abstain  from  such  acts. 

This  rule  impUei  a  dittlnrtion  between  the  Individuals  who  compote  the 
"armed  force"  of  a  State  and  Itt  other  rutorliiiaMtt.  A  definition  of  the 
term  "armed   force"  Is,  therefore,  necessary. 

Article  2.    The  armed  force  of  a  State  includes : 

1.  The  army  properly  so  called,  including  the  militia; 

2.  The  national  guards,  landsturm,  free  corps,  and  other 
bodies  which  fulfil  the  three  following  conditions: 

(a)  That  they  are  under  the  direction  of  a  responsible 
chief; 

(6)  That  they  must  have  a  uniform,  or  a  fixed  distinc- 
tive emblem  recognizable  at  a  distance,  and  worn  by  individ- 
uals composing  such  corps; 

(c)    That  they  carry  arms  openly; 

8.   The  crews  of  men-of-war  and  other  military  boats ; 

4.  The  inhabitants  of  non-occupied  territory,  who,  on 
the  approach  of  the  enemy,  take  up  arms  spontaneously  and 
openly  to  resist  the  invading  troops,  even  if  they  have  not 
had  time  to  organize  themselves. 

Article  8.  Every  belligerent  armed  force  is  bound  to 
conform  to  the  laws  of  war. 

The  only  legi.ilmate  end  that  States  may  have  in  war  beinf;  to  weaken  th« 
military  strength  of  the  enemy  (Dtelaration  of  St.  PiUriburg,  ISdS), 

AnTicLE  4.  The  laws  of  war  do  not  recognize  in  bellijj- 
erents  v.n  unlimited  liberty  as  to  the  means  of  injuring  the 
enemy. 

They  are  to  abstain  especially  from  all  needless  severity, 
as  well  as  from  all  perfidious,  unjust,  or  tjTannical  acts. 


Latoa  and  CuttofM  of  War  on  Land 


20 


Abticle  5.  Military  conventions  made  between  bellig- 
erents during  the  continuance  of  war,  such  as  armistices  and 
capitulations,  must  be  scrupulously  observed  and  respected. 

Abticle  6.  No  invaded  territory  is  regarded  as  con- 
quered until  the  end  of  the  war;  until  that  time  the  occupant 
exercises,  in  such  territory,  only  a  dc  facto  power,  essentially 
provisional  in  character. 

Pabt  II.— Application  of  Genebal  Principles 

I.— HOSTILITIES 

A. — Rules  of  Conduct  with  Reoabd  to  Inoitiouals 
(a)    Inoffensive  Population* 

The  contest  being  carried  on  bjr  "armed  forces"  only  (Article  I), 

Abticle  7.  It  is  forbidden  to  maltreat  inoffensive  popu- 
lations. 

(fe)  Meant  of  Injuring  the  Enemy 

As  tlie  struggle  must  be  honorable  (Article  4), 

Abticle  8.    It  is  forbidden: 

(a)    To  make  use  of  poison,  in  any  form  whatever; 

{h)  To  make  treacherous  attempts  upon  the  life  of  an 
enemy;  as,  for  example,  by  keeping  assassins  in  pay  or  by 
feigning  to  surrender; 

(c)  To  attack  an  enemy  while  concealing  the  distinctive 
signs  of  an  armed  force ; 

{d)  To  make  improper  use  of  the  national  fi.ig,  mili- 
tary insignia  or  uniform  of  the  enemy,  of  the  flag  of  truce 
and  of  the  protective  signs  prescribed  by  the  Genevu  Con- 
vention (Articles  17  and  40  below). 

As  needless  severity  should  be  avoided  (Article  4), 

Abticle  9.    It  is  forbidden: 

(a)  To  employ  arms,  projectiles,  or  materials  of  any 
kind  calculated  to  cause  superfluous  suffering,  or  to  aggra- 
vate wounds, — notably  projectiles  of  less  weight  than  fovur 
luuulred  grams  which  arc  explosive  or  are  charged  with 


80      Retdutiont  of  the  Irutitute  of  International  Law 

fulminating  or  inflammable  substances.     {Declaration  of 
St.  Petertburg.) 

(b)  To  injure  or  kill  nn  enemy  who  has  surrendered 
at  discretion  or  is  disabled,  ami  t«  declare  in  advance  that 
quarter  will  not  be  given,  even  by  those  who  do  not  ask  it 
for  themselves. 

(c)    The  Sick  and  Wounded,  and  the  Sanitary  Sennce 

The  foUowinc  provUlon*  (ArtUIri  10  lo  IK).  «lrnwn  from  th»  (hmfra  Conrtn- 
tiom.  exempt  the  nick  and  woumUil.  «n«l  the  persniiiM-l  of  the  HiiiHary  wrvUr.  from 
many  of  the  needleos  hardnhlp*  to  which  they  were  forimrly  exiMiiwIi 

Abticle  10.  Wounded  or  sick  soldiers  should  be  brought 
in  and  cared  for,  to  whatever  nation  they  belong. 

Article  11.  Commanders  in  chief  have  power  to  deliver 
immediately  to  the  enemy  outposts  hostile  soldiers  who  have 
been  wounded  in  an  engagement,  when  circumstances  per- 
mit and  with  the  consent  of  both  parties. 

ABTICI.E  12.  Evacuations,  together  with  the  persons 
under  whose  direction  they  take  place,  sholl  be  protected  by 
neutrality. 

Abticij:  18.  Persons  employed  in  hospitals  and  ambu- 
lances— including  the  staff  for  superintendence,  medical 
service,  administration  and  transport  of  woundetl,  as  well  as 
the  chaplains,  and  the  icmbers  and  agents  of  relief  associa- 
tions which  are  duly  authorized  to  assist  the  regular  sanitar>- 
staff, — are  considered  as  neutral  while  so  employed,  and  so 
long  as  there  remain  any  woundetl  to  bring  in  or  to  succor. 

Articij:  14.  The  personnel  designated  in  the  preceding 
article  should  continue,  after  occupation  by  the  enemy,  to 
tend,  according  to  their  needs,  the  sick  and  wounded  in  the 
ambulance  or  hospital  which  it  serves. 

Article  15.  When  such  personnel  requests  to  withdraw, 
the  commander  of  the  occupying  troops  sets  the  time  of  de- 
parture, which  however  he  can  only  delay  for  a  short  time 
in  case  of  niilitar>'  necessity. 

Article  16.  Measures  should  be  taken  to  assure,  if  pos- 
sible, to  neutralized  persons  who  have  fallen  into  the  hands 
of  the  enemy,  the  erijoyineiit  of  fitting  maintenance. 


Larva  and  CtutotM  of  IV ar  on  Land 


81 


Abticlk  17.  The  neutralized  sanitary  staff  should  wear 
a  white  arni-bad^c  with  a  red  cross,  but  the  delivery  thereof 
belongs  exclusively  to  the  military  authority. 

Abtici^  18.  The  generals  of  the  bellif^erent  Powers 
should  appeal  to  the  humanity  of  the  inhabitants,  and  should 
endeavor  to  induce  them  to  assist  the  wounded,  by  pointing 
out  to  them  the  advantages  that  will  result  to  themselves 
from  so  doing  (Articles  86  and  50) .  They  should  regard  as 
inviolable  those  who  respo»-  .  .    this  appeal. 


//)      '.Vr-  P/ 


r   r'r  ■  Uien  ['    y 


I  nutilate  the  dead 
■  .  buried  until  all 


Abtici^  10.    It 
lying  on  the  field  r  <     u.  . 

Article  20.     ''.       d    I..--     novc 
articles  on  them  '.     .  ii  !•  .'•  svi-c  ■     'ix    iieir  identity,  such 
as  pocket-books,    m   iku         '<  ,  si.  ill  iuu  «  been  collected. 

The  articles  thu..  c'".  '.  i  T;  i-,  th<  dead  of  the  enemy 
are  transmitted  to  its  un!i\-  or  j.T(r,<   iiiii'-nt. 

(e)    Who  May  Be  m udc  t^ntonera  of  War 

Article  21.  Individuals  who  form  a  part  of  the  bellig- 
erent armed  force,  if  they  fall  into  the  hands  of  the  enemy, 
are  to  be  treated  as  prisoners  of  war,  in  conformity  with 
Articles  61  ct  acq. 

The  same  rule  applies  to  messengers  openly  carrying 
official  dispatches,  and  to  civil  aeronauts  charged  with  obser\'- 
ing  the  enemy,  or  with  the  maintenance  of  communications 
between  the  various  parts  of  the  army  or  territorj'. 

Article  22.  Individuals  who  accompany  an  army,  but 
who  are  not  a  part  of  the  regular  armed  force  of  the  State, 
such  as  correspondents,  traders,  sutlers,  etc.  ind  who  fall 
into  the  hands  of  the  enemy,  may  be  detained  >  •  such  length 
of  time  only  as  is  warranted  by  strict  military  necessity. 

(/)    Spiea 

Articij:  28.  Individuals  captured  as  spies  cannot  de- 
mand to  be  treated  as  prisoners  of  war. 


i!' '  ' 


pr : 


82      Resolutions  of  the  Institute  of  International  Law 

Abticle  24.  Individuals  may  not  be  regarded  as  spies, 
who,  belonging  to  the  armed  force  of  eit^T  belligerent,  have 
penetrated,  without  disguise,  into  the  zone  of  operations  of 
the  enemy,— nor  bearers  of  official  dispatches,  carrying  out 
their  mission  openly,  nor  aeronauts  (Article  21). 

In  order  to  avoid  the  abuaet  to  which  aceuMtlons  of  eapioMge  too  often 
give  rlie  in  war  it  is  important  to  assert  emphaticaily  that 

AsTiCLE  25.  No  person  charged  with  espionage  shall 
be  pimished  until  the  judicial  authority  shall  have  pro- 
nounced judgment. 

Moreover,  it  is  admitted  that 

Article  26.  A  spy  who  succeeds  in  quitting  the  terri- 
tory occupied  by  the  enemy  incurs  no  responsibility  for  his 
previous  acts,  should  he  afterwards  fall  into  the  hands  of 
that  enemy. 

(g)    Parlementaires 

Article  27.  A  person  is  regarded  as  a  parlementaire 
and  has  a  right  to  inviolability  who  has  been  authorized  by 
one  of  the  belligerents  to  enter  into  communication  with  the 
other,  and  who  advances  bearing  a  white  flag. 

Article  28.  He  may  be  accompanied  by  a  bugler  or  a 
drummer,  by  a  color-bearer,  and,  if  need  be,  by  a  guide  and 
interpreter,  who  also  are  entitled  to  inviolability. 

The  necessity  of  this  prerogaUve  is  evident.  It  is,  moreover,  frequ»u11jr  exer- 
cised in  the  inter* »t  of  humanity.  ,^,    , 

But  it  must  not  be  injurious  to  the  adverse  party.    This  is  why 

Article  29.  The  commander  to  whom  a  parlementaire 
is  sent  is  not  in  all  cases  obliged  to  receive  him. 

Besides, 

Article  80.  The  commander  who  receives  a  parlemen- 
taire has  a  right  to  take  all  the  necessary  steps  to  prevciit 
the  presence  of  the  enemy  within  his  lines  from  being  prej- 
udicial to  him. 


Laxot  and  Cuttonu  of  War  on  Land 


88 


Tl.(  parlemenUire  and  thoie  who  accompwiy  him  should  behave  falrljr  towards 
the  enemy  receiving  them  (Article  4). 

Abticle  81.  If  a  parlementaire  abuse  the  trust  reposed 
in  him  he  may  be  temporarily  detained,  and,  if  it  be  proved 
that  he  has  taken  advantage  of  his  privileged  position  to 
abet  a  treasonable  act,  he  forfeits  his  right  to  inviolability. 

B.  Rules  of  Conduct  wfth  Regard  to  Things 
(a)    Means  of  Injuring — Bombardment 

Certain  precautions  are  made  necessary  by  the  rule  that  a  belligerent  mutt 
abstain  from  useless  severity  (Article  4).     In  accordance  with  this  principte 

Abticle  82.    It  is  forbidden: 

(a)    To  pillage,  even  towns  taken  by  assault; 

(6)  To  destroy  public  or  private  property,  if  this 
destruction  is  not  demanded  by  an  imperative  necessity  of 
war; 

(c)    To  attack  and  to  bombard  undefended  places. 

If  it  is  incontestable  that  belligerents  have  the  right  to  resort  to  bombardment 
against  fortresses  and  other  plarrs  in  which  the  rnemv  is  entrenched,  considera- 
tions of  humanity  require  that  this  means  of  coercion  be  surrounded  with  certain 
modifying  influences  which  will  restrict  as  far  as  possible  the  effects  to  the  hos- 
tile armed  force  and  its  means  of  defense.    This  is  why 

Article  88.  The  commander  of  an  attacking  force,  save 
in  cases  of  open  assault,  shall,  before  undertaking  a  bom- 
bardment, make  every  due  effort  to  give  notice  thereof  to 
the  local  authorities. 

Artici£  84.  In  case  of  bombardment  all  necessary  steps 
must  1)6  taken  to  spaie,  if  it  can  be  done,  buildings  dedicated 
to  religion,  art,  science  and  charitable  purposes,  hospitals 
and  places  where  the  sick  and  wounded  are  gathered  on  the 
condition  that  they  are  not  being  utilized  ot  the  time,  directly 
or  indirectly,  for  defense. 

It  is  the  duty  of  the  besieged  to  indicate  the  presence  of 
such  buildings  by  visible  signs  notified  to  the  assailant  be- 
forehand. 

(b)    Sanitary  Materiel 

The  arrangements  for  the  relief  of  the  wounded,  which  are  made  the  subject 
of  Artu'Ifii  lU  el  ttq.,  would  be  inadequate  were  not  sanitary  estalilishmrnts  also 
(.Tiiiitt-d  special  protection.     Hence,  in  accordunc-r  with  the  Genera  Convention, 


84      Retolutioru  of  the  Institute  of  International  Law 

Article  85.  Ambulances  and  hospitals  for  the  use  of 
armies  are  recognized  as  neutral  and  should,  as  such,  be 
protected  and  respected  by  belligerents,  so  long  as  any  sick 
or  wounded  are  therein. 

Abticle  86.  The  same  rule  applies  to  private  buildmgs, 
or  parts  of  buildings,  in  which  sick  or  wounded  are  gathered 
and  cared  for. 

NererthrlM*. 

Article  87.  The  neutrality  of  hospitals  and  ambulances 
ceases  if  they  are  guarded  by  a  military  force;  this  does  not 
preclude  the  presence  of  police  guard. 

Article  88.  As  the  equipment  of  military  hospitals  re- 
mains subject  to  the  laws  of  war.  persons  attached  to  sutli 
hospitals  cannot,  in  withdrawing,  carr>'  away  any  articles  but 
such  as  are  their  private  property.  Ambulances,  on  tlu- 
contrary,  retain  all  their  equipment. 

Articij'.  39.  In  the  circumstances  referred  to  in  tli; 
above  paragraph,  the  term  "  ambulance  "  is  upplie<l  to  field 
hospitals  and  other  temporary  establishments  which  follow 
the  troops  on  the  field  of  battle  to  receive  the  sick  and 
wounded. 

Article  40.  A  distinctive  and  unifonn  flag  is  adopted 
for  ambulances,  hospitals,  and  evacuations.  It  l>ears  a  red 
cross  on  a  white  ground.  It  must  always  be  accompanied 
by  the  national  flag. 

II.— OCCUPIED    TERRITORY 

A. — Definition 

Article  41.  Territory  is  regarded  as  occupied  when,  as 
the  consetjuence  of  invasion  by  hostile  forces,  the  State  h> 
which  it  belongs  has  ceasetl,  in  fact,  to  exercise  its  ordinarv 
authority  therein,  and  the  invading  State  is  alone  in  a  posi- 
tion to  maintain  order  there.  The  limits  within  which  this 
state  of  afl'airs  exists  determine  the  extent  and  duration  nt 
the  occupation. 


r«Kr'a"Tra^"!!r?- 


taMt"  ■"-i^z-'iT^ 


^JT.'A 


Laws  and  Customs  of  War  on  Land 


85 


B. — Rules  of  Conduct  with  Respect  to  Persons 

In  consideration  of  tlie  new  relations  which  arise  from  the  provisional  chan« 
of  government  (Article  6),  "^  " 

Article  42.  It  is  the  duty  of  the  occupying  irulitary 
authority  to  inform  the  inhabitants,  at  the  earliest  prac- 
ticable moment,  of  the  powers  that  it  exercises,  as  well  as 
of  the  local  extent  of  the  occupation. 

Article  43.  The  occupant  should  take  all  due  and  need- 
ful measures  to  restore  and  ensure  public  order  and  public 
safety. 

To  that  end 

Article  44.  The  occupant  should  maintain  the  laws 
which  were  in  force  in  the  country  in  time  of  peace,  and 
should  not  modify,  suspend,  or  replace  them,  unless  neces- 
sary. 

ARTICI.E  45.  The  civil  functionaries  and  employees  of 
every  class  who  consent  to  continue  to  perform  their  duties 
are  under  the  protection  of  the  occupant. 

They  may  always  be  dismissed,  and  they  always  have  the 
right  to  resigi-  li.  ir  places. 

They  should  not  be  summarily  punished  unless  they  fail 
to  fulfil  obligations  accepted  by  them,  and  should  be  handed 
over  to  justice  only  if  they  violate  these  obligations. 

Article  46.  In  case  of  urgency,  the  occupant  may  de- 
manc*  the  cooperation  of  the  inhabitants,  in  order  to  provide 
for  the  necessities  of  local  administration. 

As  occupntlon  does  not  entail  upon  the  inhabitants  a  change  of  nationality, 

Article  47.  The  population  of  the  invaded  district  can- 
not l)e  compelled  to  swear  allegiance  to  the  hostile  Power; 
liut  inhabitants  who  commit  acts  of  hostility  against  the 
•fcupant  are  punishable  (Article  1). 

Article  48.  Tlk.-  inhal)itnnts  «>f  an  occupied  territory 
who  do  not  submit  to  the  orders  of  the  occupant  may  be 
cuijipelled  to  do  so. 

Tlie  occupant,  howjver.  cannot  compel  the  inhabitants 


^7JBB-ss^llr«-?'i%=*=sW^'f»3r/i 


»?'-r-f'*?«,r*iPHf,f««/>;? 


-*       ! 


■*w; 


86      Retolutiotu  of  the  Institute  of  Intematiotud  Laic 

to  assist  him  in  his  works  of  attack  or  defense,  or  to  take 
part  in  military  operations  against  their  own  country 
(Article  4). 

Betidet, 

Abticle  49.  Family  honor  and  rights,  the  lives  of  in- 
dividuals, as  well  as  their  religious  convictions  and  practice, 
must  be  respected  (Article  4). 

C— Rules  of  Conduct  with  Reoabd  to  Phopeety 
(a)  Public  Property 

AlthouRh  the  occupant  replaces  the  memy  State  in  the  government  of  the 
Invaded  territory,  hit  power  Is  not  absolute.  So  long  as  the  fate  of  this  territory 
remains  In  suspense— that  Is.  until  peace-the  occupant  is  not  free  to  dispose  of 
what  stIU  belongs  to  the  enemy  and  Is  not  of  use  in  mUltar\  operation.  Hence 
the  following  rules  t 

Article  50.  The  occupant  can  only  take  possession  of 
cash,  funds  and  realizable  or  negotiable  securities  which  are 
strictly  the  property  of  the  State,  depots  of  arms,  supplies, 
and,  in  general,  movable  property  of  the  State  of  such 
character  as  to  be  useful  in  military  operations. 

Article  51.  Means  of  transportation  (railways,  lK)ats, 
&c.),  as  well  as  land  telegraphs  and  landing-cables,  can  only 
be  appropriated  to  the  use  of  the  occupant.  Their  destruc- 
tion is  forbidden,  unless  it  be  demandetl  by  military  neces- 
sity. They  are  restored  when  peace  is  made  in  the  condition 
in  which  they  then  are. 

Article  52.  The  occupant  can  only  act  in  the  capacity 
of  provisional  administrator  in  respect  to  real  property,  such 
as  buildings,  forests,  agricultural  establishments,  belonging 
to  the  enemy  State  (Article  6). 

It  nmst  safeguard  the  capital  of  these  properties  and  see 
to  their  maintenance. 

Article  33.  The  property  of  municipalities,  and  that  of 
institutions  devoted  to  religion,  charity,  education,  art  and 
science,  cannot  l)e  seized. 

All  destruction  or  wilful  damage  to  institutions  of  this 
character,  historic  monuments,  archives,  works  of  art,  or 


LatM  and  Customs  of  War  on  Land 


87 


science,  is  formally  forbidden,  save  when  urgently  demanded 
by  military  necessity. 

{b)  Private  Property 

It  the  powen  of  the  occupant  are  limited  with  respect  to  the  property  of  the 
eneinjr  State,  with  greater  reason  are  they  limited  with  respect  to  the  property 
of  indiWduali. 

Abticle  54.  Private  property,  whether  belonging  to  in- 
dividuals or  corporations,  must  be  respected,  and  can  be 
confiscated  only  under  the  limitations  contained  in  the  fol- 
lowing articles. 

Ahticle  55.  Means  of  transportation  (railways,  boats, 
&c.),  telegraphs,  depots  of  arms  and  munitions  of  war,  al- 
though belonging  to  conipanies  or  to  individuals,  may  be 
seized  by  the  occupant,  hut  must  he  restored,  if  possible,  and 
compensation  fixed  when  peace  is  made. 

Article  56.  Impositions  iti  kind  (requisitions)  de- 
manded from  communes  or  inhabitants  should  he  in  propor- 
tion to  the  necessities  of  war  as  generally  recognized,  and 
in  proportion  to  the  resources  of  the  country. 

Requisitions  can  only  l)e  made  on  the  authority  of  the 
commander  in  the  locality  occupied. 

Article  57.  The  occupant  may  collect,  in  the  way  of 
dues  and  taxes,  only  those  already  established  for  the  benefit 
of  the  State.  He  employs  them  to  defray  the  expenses  of 
administration  of  the  coantr>',  to  the  extent  in  which  the 
legitimate  government  was  bound. 

Article  58.  The  occupant  cannot  collect  extraor- 
dinary contributions  of  money,  save  as  an  equivalent 
for  fines,  or  imposts  not  paid,  or  for  payments  not  made 
in  kind. 

Contributions  in  money  can  be  imposed  only  on  the  order 
and  responsibility  of  the  general  in  chief,  or  of  the  superior 
civil  authority  established  in  tlie  occupied  territory,  as  far 
as  possible,  in  accordance  with  the  rules  of  assessment  and 
incidence  of  the  taxes  in  force. 

Ahticij;;  59.  In  the  apportionment  of  burdens  relating 
to  the  quartering  of  troops  and  war  contributions,  account 


lis  i 
mi 


88      Retolutioru  of  the  Institute  of  Intematiotud  Laic 

is  taken  of  the  charitable  zeal  displayed  by  the  inhabitants 
in  behalf  of  the  wounded. 

Article  60.  Requisitioned  articles,  when  they  are  not 
paid  for  in  cash,  and  war  contributions  are  evidenced  by 
receipts.  Measures  should  be  taken  to  assure  the  bona  fide 
character  and  regularity  of  these  receipts. 


III.— PRISONERS   OF    WAR 
A.— Rules  fob  Captivity 

The  ronflnemrnt  of  prlsoiwri  of  war  is  not  In  the  nature  of  a  penaltr  for 
crime  (Article  41):  neither  Is  It  an  act  of  vengeance.  It  U  •  temporary  deten- 
tion only,  entirely   without   penal  character. 

In  the  foUowinu  provisions,  therefore,  regard  has  been  had  to  the  con- 
sideration due  them  as  prisoners,  and  to  the  necessity  of  their  secure  detention. 

Article  61.  Prisoners  of  war  are  in  the  power  of  the 
hostile  government,  but  not  in  that  of  the  individuals  or 
corps  who  captured  them. 

Article  62.  They  are  subject  to  the  laws  and  regula- 
tions in  force  in  the  army  of  the  enemy. 

Article  68.    They  must  be  humanely  treated. 
Article    64.    All    their    personal    belongings,    except 
arms,  remain  their  property. 

Article  63.  Every  prisoner  is  boimd  to  give,  if  ques- 
tioned on  the  subject,  his  true  name  and  rank.  Should  he 
fail  to  do  so,  he  may  be  deprived  of  all,  or  a  part,  of  the 
advantages  accordetl  to  prisoners  of  his  class. 

ARTICI.E  66.  Prisoners  may  be  interned  in  a  town,  a 
fortress,  a  camp,  or  other  place,  under  obligation  not  to 
go  beyond  certain  fixed  limits;  but  they  may  only  be 
placed  in  confinement  as  an  indispensable  measure  of 
safety. 

Article  67.  Any  act  of  insubordination  justifies  the 
adoption  towards  them  of  such  measure  of  severity  as  may 
he  necessarj'. 

Article  68.  Arms  may  be  used,  after  summoning, 
against  a  prisoner  attempting  to  escape. 

If  he  is  recaptured  before  being  able  to  rejoin  his  own 
army  or  to  quit  the  territory  of  his  captor,  he  is  only  linbU- 


Late$  and  CuitotM  of  War  on  Land  89 

to  disciplinary  punishment,  or  subject  to  a  stricter  surveil- 
lance. 

But  if,  after  succeeding  in  escaping,  he  is  again  cap- 
tured, he  is  not  liable  to  punishment  for  his  previous 
flight. 

If,  however,  the  fugitive  so  recaptured  or  retaken  has 
given  his  parole  not  to  escape,  he  may  be  deprived  of  the 
rights  of  a  prisoner  of  war. 

Abticle  69.  The  government  into  whose  hands  pris- 
oners have  fallen  is  charged  with  their  maintenance. 

In  the  absence  of  an  agreement  on  this  point  between  the 
belligerent  parties,  prisoners  are  treated,  as  regards  food 
and  clothing,  on  the  same  peace  footing  as  the  troops  of  the 
government  which  captured  them. 

Article  70.  Prisoners  cannot  be  compelled  in  any  man- 
ner to  take  any  part  whatever  in  the  operations  of  war,  nor 
compelled  to  give  information  about  their  country  or  their 
army. 

Articij:  71.  They  may  be  employed  on  public  works 
which  have  no  direct  connection  with  the  operations  in  the 
theater  of  war,  ^'hich  are  not  excessive  and  are  not  humiliat- 
ing either  to  their  military  rank,  if  they  belong  to  the  army, 
or  to  their  official  or  social  position,  if  they  do  not  fwrn  part 
thereof. 

Abticle  72.  In  case  of  their  being  authorized  to  engage 
in  private  industries,  their  pay  for  such  services  may  be  col- 
lected by  the  authority  in  charge  of  tlM?m.  The  sums  so 
received  may  be  employed  in  bettering  their  condition,  or 
may  be  paid  to  them  on  their  release,  subject  to  deduction,  if 
that  course  be  deemed  expedient,  of  the  expense  of  their 
maintenance. 


B. — Termination  of  Captivity 

Tlif  rensons  justifying  detention  of  the  captureti  enemy  exist  only  durine 
llie  c-oritinuance  of  the  war.  '  o 

Ahtici.e  78.  The  captivity  of  prisoners  of  war  ceases,  as 
a  matter  of  right,  at  the  conclusion  of  peace;  but  their  libera- 
tion is  then  regulated  by  agreement  between  the  belligerents. 


;ifi 


40      Retolutioru  of  the  Inttitute  of  InternaHemd  Law 

BcfoK  that  Uow,  and  bf  Ttrtuc  of  the  <7«mm  CMM^te*, 

AxTicLE  74.  It  also  ceases  as  of  right  for  wounded  or 
sick  prisoners  who,  after  being  cured,  are  found  to  be  unfit 
for  further  military  service. 

The  captor  should  then  send  them  back  to  their  country. 

OvriBg  the  war 

Article  75.  Prisoners  of  war  may  be  released  in  accord- 
ance with  a  cartel  of  exchange,  agreed  upon  by  the  bellig- 
erent parties. 

Eren  without  exchange 

AsTicLE  76.  Prisoners  may  be  set  at  liberty  on  parole,  if 
the  laws  of  their  country  do  not  forbid  it. 

In  this  case  they  are  bound,  on  their  personal  honor, 
scrupulously  to  fulfil  the  engagements  which  they  have  freely 
contracted,  and  which  should  be  clearly  specified.  On  its 
part,  their  own  government  should  not  demand  or  accept 
from  them  any  service  incompatible  with  the  parole  given. 

Article  77.  A  prisoner  cannot  be  compelled  to  accept 
his  liberty  on  parole.  Similarly,  the  hostile  government  is 
not  obliged  to  accede  to  the  request  of  c  prisoner  to  be  set 
at  liberty  on  parole. 

Abticix  78.  Any  prisoner  liberated  on  parole  and  re- 
captured bearing  arms  against  the  government  to  which  he 
hod  given  such  parole  may  be  deprived  of  his  rights  as  a 
prisoner  of  war,  unless  since  his  liberation  he  has  been  in- 
cluded in  an  unconditional  exchange  of  prisoners. 


IV.— PERSONS    INTERNED    IN    NEUTRAL   TERRITORY 

It  U  unlvrrtMiIlT  admlttH  tUt  ■  nnitral  Sl»tf  cannot,  without  rompromi»lnir 
Its  wutMlitv.  lend  aid  to  rilher  Iwlliwrrnt.  or  prnnit  them  to  make  unr  of  it* 
tcrriti.rv  6n  thr  other  hamt.  ron«icleralioiiii  of  hiiniiinity  ilk-tate  that  aiylum 
shnulii  iiot  lie  rrfwMtl  ti.  indintluals  who  lake  refuge  in  neutral  territory  to  edeape 
death  or  r«iiflvitT.  Hence  H»e  folk>wln((  provlxlons,  calculated  to  reconcile  the 
opposinic  interetts  Involved. 

Articix  70.  A  neutral  State  on  whose  territor>'  tro<ips 
or  individuals  belonging  to  the  armetl  forces  of  the  bellig- 
erents take  refuge  sh«*Ud  intent  them,  as  far  as  possible, 
at  a  distance  from  the  theater  of  war. 


LatM  and  Cuttom*  of  War  on  Land  41 

It  should  do  the  same  towards  those  who  make  use  of  its 
territory  for  military  operations  or  services. 

AsTiCLE  80.  The  interned  may  be  kept  in  camps  or 
even  confined  in  fortresses  or  other  places. 

The  neutral  State  decides  whether  officers  can  be  left  at 
liberty  on  parole  by  taking  an  engagement  not  to  leave  the 
neutral  territory  without  permission. 

Akticle  81.  In  the  absence  of  a  special  convention  con- 
cerning the  maintenance  of  the  intemed,  the  neutral  State 
supplies  them  with  the  food,  clothing,  and  relief  required 
by  humanity. 

It  also  takes  care  of  the  matMel  brought  in  by  the 
interned. 

When  peace  has  been  concluded,  or  sooner  if  possible,  the 
expenses  caused  by  the  internment  arc  repaid  to  the  neutral 
State  by  the  belligerent  State  to  which  the  interned  belong. 

Abticij:  82.  The  provisions  of  the  Geneva  Convention 
of  August  22,  1864  (Articles  10-18,  83-40,  59  and  74  above 
given),  are  applicable  to  the  sanitary  staff,  as  well  as  to 
the  sick  and  wounded,  who  take  refuge  in,  or  are  conveyed 
to,  neutral  territory. 

In  partlcttUr, 

Article  88.  Evacuations  of  wounded  and  sick  not  pris- 
oners may  pass  through  neutral  territory,  provided  the  per- 
sonnel and  material  accompanying  them  are  exclusively 
sanitary.  The  neutral  State  through  whose  territory  these 
evacuations  are  made  is  bound  to  take  whatever  measures  of 
safetj'  and  control  are  necessary  to  secure  the  strict  observ- 
ance of  the  above  conditions. 


Paht  III. — Penai.  Sanctiox 

If  any  of  the  forrgoinK  ruim  be  vtolatrd.  the  offendlnK  partici  thould  be 
punished,  after  a  Judirlal  hearlnfr.  by  the  tielligerent  In  wboie  hands  ther  are. 
Therefore 

Article  84.  Offenders  against  the  laws  of  war  are  liable 
to  the  punishments  specified  in  the  penal  law. 

This  mode  of  repression,  however,  is  only  applicable  when  the  person  of  the 
offender  can  be  secured.    In  the  contrnr>'  case,  the  criminal  law  is  powerless,  and. 


42       Reidutions  of  the  Institute  of  Intenmtional  Imw 

If  the  Injuml  p«rtjr  denii  the  miiulecd  lo  terloM  In  rh«r«eter  m  to  mdie  it 
neretMry  to  fef»U  the  rnemjr  to  ■  rrnpect  for  Uw.  no  other  rcrourtc  than  • 
retort  to  rrprtiMili  renuUii*.  ..... 

HrprlMM  mrt  an  exrepttan  to  the  acneriil  rule  of  cqultjr.  that  an  innocent 
DerMMi  ouBht  no«  to  fuffer  for  the  jr«ll»y-  They  are  aim  at  »ariaiiee  with  the 
rule  that  eaeh  be<ll||crenl  ihauld  ron^irm  to  the  ruka  of  war.  without  reciprocity 
on  the  part  of  the  enemy.  Thin  necewary  rifor,  howrrer,  is  modiflcd  to  iorae 
cmtent  by  the  following  rettrictionii: 

Abticle  85.  Reprisals  ore  formally  prohibited  in  case 
the  injury  complained  of  has  been  repaired. 

Article  86.  In  ^ave  cases  in  which  reprisals  appear  to 
be  absolutely  necessary,  their  nature  and  scope  shall  never 
exceed  the  measure  of  the  infraction  of  the  laws  of  war 
conmiitted  by  the  enemy. 

They  can  only  be  resorted  to  with  the  authorization  of 
the  commander  in  chief. 

They  must  conform  in  all  cases  to  the  laws  of  humanity 
and  morality. 


EXTRADITION ' 

Ai  a  result  of  the  derision  taken  at  Ziirich  in  1877,'  a  report  on 
extradition  waa  preaented  by  Mr.  Ch.  Brochrr  at  Bruisels,'  and  another 
by  Mr.  Renault  at  Oxford'.'  The  deliberation*  of  1879  were  without 
result;'  those  of  the  next  year*  resulted  on  Septtnibcr  •>,  1880,  in  tin- 
adoption  of  the  following  Heioluiioni  of  Otford.^ 

1.  Extradition  is  an  international  act  in  conformity  with 
justice  and  the  interests  of  States,  since  it  tends  to  prevent 
and  check  effectively  violations  of  penal  law. 

2.  Extradition  is  effected  in  a  sure  and  regular  man- 
ner only  pursuant  to  treaty,  and  it  is  desirable  that  treaties 
become  more  and  more  numerous. 

3.  Nevertheless  it  is  not  treaties  alone  that  make  cx- 
trnditicm  an  act  in  conformity  with  right,  and  it  may  Ik- 
effected  even  in  the  absence  of  any  contractual  tie. 

4.  It  is  desirable  that  in  every  countrj'  a  law  regulate 
the  procedure  on  the  subject  as  well  ns  the  conditions  under 


■  Tnhlrnu  gfnfrnl,  p.   Wi. 
'  Annnairr.  vol.  i?,  pp.  51-54. 

•  Ibid.,  vol.  ;»,  p.  202. 

•  Ihid.,  vol.  5,  p.  70. 


•  lUid.,  vol.  3,  pp.  i>H«-J96. 

•Ihid..  vol.  5.  pp.   I(«l-I37;  vol.  fl,  pp.  30-S9. 

'  Ibid.,  vol.  5.   p.   1*7. 


Extradition 


48 


which  individualii  demanded  as  ufTenders  shall  be  aurren- 
dered  to  the  K<'verriiiivnts  with  which  no  treaty  exists. 

fl.  The  condition  of  reciprocity  in  this  matter  may  be 
required  by  policy;  it  is  not  required  by  justice. 

6.  Between  countries  whose  criminal  le^inslations  rest 
upon  similar  bases  and  which  have  mutual  cfmfldence  in  their 
judicial  institutions,  extraditi(m  of  nationals  would  be  a 
means  of  assuring  good  administration  of  penal  justice  be- 
cause it  should  be  considered  as  desirable  that  the  jurisdic- 
tion of  the  forum  delicti  commiati  be  so  far  as  possible 
called  upon  to  render  judgment. 

7.  Kven  admitting  the  present  practice  which  with- 
draws nationals  from  extradition,  no  account  should  be 
taken  of  a  iiaticmality  ac(|uired  only  huwc  the  perpetration 
of  the  act  for  which  extraditicm  is  asked. 

8.  The  competence  of  the  requesting  State  should  l)e 
supported  by  its  own  law;  it  should  not  be  in  contradiction 
with  the  law  of  the  country  of  refuge. 

0.  If  there  are  several  re(|uests  for  extradition  for  the 
same  act,  preference  should  be  given  to  the  State  upon  whose 
territory  the  offense  was  committed. 

10.  If  the  same  person  is  demanded  by  several  States 
by  reason  of  different  offenses,  the  requested  State  will  in 
general  have  regard  to  the  relative  gravity  of  these  offenses. 

In  case  of  doubt  concerning  the  relative  gravity  of  the 
offenses,  the  requested  State  will  take  into  account  priority 
of  demand. 

11.  As  a  rule,  it  should  be  required  that  the  acts  to 
which  extradition  applies  be  punishable  by  the  legislation  of 
the  two  countries,  except  in  cases  where  by  reason  of  par- 
ticular institutions  or  of  the  geographlcar situation  of  the 
country  of  refuge  the  actual  circumstances  constituting  the 
offense  cannot  exist. 

12.  Extradition  being  always  a  grave  measure  ought  to 
•)f  applietl  only  to  offenses  of  some  importance.  Treaties 
should  enumerate  them  with  precision;  their  provisions  on 
this  sul)ject  naturally  vary  according  to  the  respective  situa- 
tion of  the  contracting  countries. 


MKtOCOPV   MSOIUTION   TBT  OMIT 

(ANSI  and  ISO  TEST  CHAKT  No  2) 


1.0 

I.I 

1"  123 

14 

■  22 
|2jO 

iy4 

|||..25 

_J     /APPLIED  IM/1GE    Inc 

B^  1653    Eott   Moir   Str»«t 

Roc^itcr.   Neo   York  '4609       USA 

(716)   ♦82  -0300  -  Phon« 
(716)  288-  5989  -  F<j« 


M,, 


■I: 
II. 


!", 


44      Resolutions  of  the  Institute  of  International  Law 

18.   Extradition  cannot  take  place  for  political  acts. 

14.  It  is  for  the  requested  State  to  decide  whether  in 
the  circumstances  the  act  on  account  of  which  extradition  is 
demanded  has  a  political  character. 

In  considering  this  question  it  should  be  guided  by  the 
two  following  ideas: 

(a)  Acts  combining  all  the  characteristics  of  crimes  at 
conmion  law  (murders,  arsons,  thefts)  should  not  be  ex- 
cepted from  extradition  by  reason  only  of  the  political  pur- 
pose of  their  authors; 

(6)  In  passing  upon  acts  committed  during  a  political 
rebellion,  an  insurrection,  or  a  civil  war,  it  is  necessary  to 
inquire  whether  they  are  excused  by  the  customs  of  war. 

15.  In  any  case,  extradition  for  crimes  having  the  char- 
acters both  of  political  and  common  law  crime  ought  not  to 
be  granted  unless  the  requesting  State  gives  the  assurance 
that  the  person  surrendered  shall  not  be  tried  by  extraordi- 
nary courts. 

16.  Extradition  ought  not  to  be  applied  to  the  desertion 
of  military  persons  belonging  either  to  the  land  or  to  the 
sea  forces,  nor  to  purely  military  oflPenses. 

The  adoption  of  this  rule  does  not  prevent  handing  over 
sailors  belonging  either  to  the  service  of  the  State  or  to  the 
merchant  marine. 

17.  A  law  or  treaty  of  extradition  may  be  applied  to 
acts  committed  before  it  came  into  force. 

18.  Extradition  should  be  effected  through  the  diplo- 
matic channel. 

19.  It  is  desirable  that  the  judicial  authority  in  the 
country  of  refuge  should  be  invoked  to  pass  upon  the  re- 
quest for  extradition  after  hearing  both  sides. 

20.  The  requested  State  should  not  grant  extradition  if, 
according  to  its  public  law,  the  judicial  authority  has  decided 
that  the  request  should  not  be  allowed. 

21.  The  examination  should  have  for  its  object  the 
general  conditions  of  the  extradition  and  the  probability  of 
the  accusation. 


Extradition 


45 


22.  The  government  which  has  obtained  an  extradition 
for  a  given  act  is  bound,  in  the  absence  of  a  treaty  to  the 
contrary,  not  to  allow  the  surrendered  person  to  be  tried 
or  punished  except  for  that  act. 

28.  The  government  which  has  granted  an  extradition 
can  afterwards  consent  to  the  trial  of  the  surrendered  per- 
son for  acts  other  than  that  for  which  he  was  surrendered, 
if  they  are  such  as  might  support  ertradition. 

24.  The  government  which  has  a  person  in  its  power  in 
consequence  of  an  extradition  cannot  deliver  him  to  another 
government  without  the  consent  of  that  which  surrendered 
him  to  it. 

25.  The  act  issued  by  the  judicial  authority  declaring 
extradition  admissible  must  set  out  the  circumstances  imder 
which  extradition  shall  take  place  and  the  acts  for  which  it 
has  been  granted. 

26.  The  person  extradited  should  be  allowed  to  claim, 
as  a  preliminary  exception  before  the  tribunal  called  upon 
to  give  final  judgment,  the  irregularity  of  the  conditions 
under  which  his  extradition  has  been  granted. 


INTERNATIONAL   REGULATIONS   CONCERN- 
ING  PRIZES ' 

After  having  formulated  its  collective  opinion  upon  the  treatment  of 
private  property  on  the  tea  and  upon  the  opportunity  to  create  interna- 
tional court!  of  prize,  the  Institute,  at  its  session  at  Ziirich,  deemed 
it  important  to  study  in  their  entirety  the  reforms  which  could  be  made  in 
tlic  present  system  of  courts  and  administration  of  justice  in  prize  mat- 
ters. It  therefore  instructed  its  Bureau  to  form  a  committee  for  the  pur- 
pose of  considering: 

1.  General  principles  which  might  be  formulated  in  treaties  regard- 
in;?  the  law  to  be  applied  in  prize  cases; 

2.  A  system  for  the  organization  of  international  prize  courts,  giving 
to  the  interested  individuals  of  the  neutral  or  enemy  State  the  broadest 
guaranties  of  an  impartial  judgment; 

3.  A  common  procedure  to  be  adopted  for  the  judgment  of  prize 

cases. 

•  Tabhau  giniral,  p.  194. 


n 

it 


46      Resolutions  of  the  Institute  of  International  Law 

Mr.  Bulmerincq  was  named  reporter  of  the  committee/  and  gave 
himself  up  to  an  extensive  piece  of  work,  forming  a  real  treatise  upon 
prise  matters.  This  work  being  only  partly  completed  at  the  time  of 
the  session  in  Paris,  the  Institute,  upon  the  suggestion  of  the  reporter 
himself,  postponed  the  examination  thereof  to  a  later  session;*  it  was 
still  unable  to  consider  it  at  Oxford.' 

September  3,  1881,  the  committee  met  at  Wiesbaden  to  discuss  the 
Draft  of  international  regulation*  for  prisei,  which  Mr.  Bulmerincq  had 
just  finished  drawing  up.* 

The  Institute,  in  its  turn,  began  the  examination  at  the  plenary  ses- 
sion at  Turin,  September  13,  1882,  and  adopted  the  first  62  articles  from 
the  13th  to  the  15th  of  the  same  month."  At  Munich,  in  the  plenary  ses- 
sions of  September  6  and  7,  1883,  the  Institute  adopted  Articles  63  to  84."' 

I. — General  Provisions 

Article  1.  The  war  vessels  and  military  forces  of  bel- 
ligerent States  are  alone  authorized  to  exercise  the  law  of 
prize,  that  is  to  say,  the  stopping,  visit,  search  and  seizure  of 
merchant  vessels  during  a  naval  war. 

Article  2.   Privateering  is  forbidden. 

Article  8.  The  arming  of  privateers  is  still  permitted 
as  a  method  of  reprisal  against  belligerents  wliich  do  not 
respect  the  principle  contained  in  Article  2.  In  this  case  it 
is  forbidden  to  give  commissions  to  foreigners. 

Article  4.  Private  property  is  inviolable  if  both  par- 
ties so  treat  it,  and  except  in  the  cases  enumerated  in  Sec- 
tion 28. 

Article  3,  The  right  to  take  prize  does  not  accrue  to 
belligerents  until  after  the  commencement  of  hostilities.  It 
ceases  during  an  armistice  and  with  the  preliminary  negotia- 
tions for  peace.  So  far  as  neutrals  are  concerned  the  right 
to  take  prize  cannot  be  exercised  until  the  belligerents  have 
notified  the  neutrals  that  war  exists. 

Article  6.  The  right  to  take  prize  cannot  be  exercised 
as  to  vessels  and  cargoes  imtil  they  have  had  knowledge  of 
the  existence  of  the  war.  There  is  no  basis  for  the  taking  of 
prize  if  the  master  of  the  vessel  or  owner  of  the  cargo  proves 
that  he  did  not  have  such  knowledge. 


'  Annuaire,  vol.  2,  p.  121. 
•  Ibid.,  vol.  3,  p.  109. 
'Ibid.,  vol.  5,  p,  131. 


•  Ibid.,  vol.  6,  pp.  12.  105,  129,  139,  164,  174. 
'Ibid.,  pp.  177,  213. 

•  Ibid.,  vol.  7,  pp.  la^-lftO. 


International  Regulations  Concerning  Prizes         47 

Aeticue  7.  If  the  belligerent  State  which  may  order  the 
merchant  vessels  of  the  enemy  to  leave  its  ports,  permits 
them  to  discharge  the  merchandise  on  board  before  leaving, 
and  to  load  with  other  merchandise,  it  should  fix  exactly  the 
period  granted  to  them  for  this  purpose,  and  should  make  it 
known  to  thv  public.  In  this  case  the  belligerent  cannot  per- 
mit the  exercise  of  the  right  of  seizure  as  prize  against  these 
vessels  before  the  expiration  of  the  said  period. 

Aeticle  8.  The  right  to  take  prize  cannot  be  exercised 
except  in  the  waters  of  a  belligerent  and  on  the  high  seas;  it 
cannot  be  exercised  in  neutral  waters '  or  in  waters  which  are 
expressly  protected  from  acts  of  war  by  treaty.  Neither  can 
a  belligerent  continue  within  the  latter  two  classes  of  waters 
an  attack  already  begun. 

Aeticle  9.  Seizures  made  in  neutral  waters,  or  in  waters 
protected  by  treaty  from  acts  of  war,  are  invalid.  The  ves- 
sels or  objects  captured  should  be  returned  to  the  neutral 
State  or  States  bordering  the  water  to  be  restored  by  the 
latter  to  the  original  owner.  Furthermore,  the  State  of  the 
captor  is  responsible  for  all  damages  and  loss. 

II. — Special  Peovisions 
1. — Stopping 

Aeticle  10.  In  the  cases  provided  for  in  these  regu- 
lations, war  vessels  of  a  belligerent  State  are  authorized  to 
stop  any  merchant  vessel  or  private  vessel  which  they 
may  meet  in  the  waters  of  their  State,  or  on  the  high  seas, 
and  elsewhere  than  in  neutral  waters  or  waters  withdrawn 
from  the  field  of  acts  of  war. 

Article  11.  The  war  vessel  of  the  belligerent,  in  order 
to  invite  the  merchant  vessel  to  stop,  shall  fire  a  shot  from 
a  cannon,  as  a  summons,  using  either  blank  shot,  or  powder 

•The  text  printed  as  definitive  in  tlie  Annwxire,  vol.  6,  p.  213,  omits  mention 
of  neutrjil  waters.  This  omission  is  evidently  an  error  in  printing,  as  is  seen  by 
comparinn  Article  8  of  the  draft  of  Mr.  Bulmerinrq  and  that  of  Wiesbaden,  at 
pages  106  and  165  of  the  same  volume  of  the  Annaaire,  the  vote  on  Article  8, 
at  page  18",  and  especially  the  end  of  this  Hrticle  and  the  following  article,  where 
the  two  kinds  of  waters  are  referred  to.  Tlie  omission  has  been  supplied  in  the 
!cxt  printed  in  llie  Annuaire,  vol.  9,  p.  -2\9. 


th4  I. 
'ti,. 


m 


48      Resolution*  of  the  Institute  of  Internatiomd  Law 

only.  Bci .  -",  or  at  the  same  time,  the  war  vessel  shall  raise 
its  flag,  and  in  the  night  time  shall  place  a  lantern  above  it. 
Upon  this  signal  the  vessel  which  has  been  stopped  shall 
raise  its  flag  and  heave  to  to  await  the  visit.  The  war  vessel 
shall  then  send  to  the  vessel  which  has  been  stopped  a  boat 
manned  by  an  officer  accompanied  by  a  sufficient  number  of 
men,  of  whom  but  two  or  three,  with  the  officer,  shall  board 
the  vessel  which  has  been  stopped. 

Ahticle  12.  The  vessel  which  has  been  stopped  can 
never  be  required  to  send  its  master  or  any  person  what- 
ever on  board  the  war  vessel  to  show  his  papers  or  for  any 
other  purpose. 

Ahticle  13.  The  merchant  vessel  is  obliged  to  stop;  it 
is  forbidden  to  continue  on  its  course.  If  it  does  continue 
the  war  vessel  has  the  right  to  pursue  it  and  stop  it  by  force. 

2.— Visit 

Article  14.  The  right  of  visit  is  exercised  in  belligerent 
waters,  so  far  as  they  are  not  protected  from  acts  of  war  by 
treaty,  and  on  the  high  seas;  it  is  exercised  as  to  merchant 
vessels,  but  not  as  to  war  vessels  of  a  neutral  State,  or  as 
to  other  vessels  ostensibly  belonging  to  such  State,  or  as  to 
neutral  merchant  vessels  convoyed  by  a  war  vessel  of  their 

State. 

Article  15.  The  right  of  visit  is  exercised  for  the  pur- 
pose of  either  verifying  the  nationality  of  a  vessel  which 
has  been  stopped,  or  for  ascertaining  whether  the  vessel  is 
engaged  in  transportation  which  has  been  forbidden,  or  for 
ascertaining  whether  there  has  been  a  violation  of  a  blockade. 

Article  16.  When  neutral  merchant  vessels  are  con- 
voyed, they  shall  not  be  visited,  if  the  commander  of  the 
convoying  vessel  sends  to  the  vessel  of  the  belligerent  which 
has  stopped  it,  a  list  of  the  convoyed  vessels,  and  a  declara- 
tion signed  by  him  showing  that  they  do  not  carry  any 
contraband  of  war,  and  showing  the  nationality  and  des- 
tination of  the  convoyed  vessels. 

Article  17.  When  the  vessel  to  be  visited  is  a  mail 
boat,  it  shall  not  be  visited  if  the  officer  of  the  government 


International  Regulations  Concerning  Frizea       4d 

whose  flag  it  flies,  who  is  on  board  the  ship,  declares  in 
writing  that  the  mail  ship  is  carrying  neither  dispatches  nor 
troops  for  the  enemy,  nor  contraband  of  war  for  the  account 
of,  or  destined  to,  the  enemy. 

Article  18.  Visit,  to  which  every  vessel  not  exempted 
therefrom  by  the  provisions  of  Articles  16  and  17  should 
submit,  begins  with  an  examination  of  the  papers  of  the 
vessel  which  has  been  stopped.  If  these  papers  are  found  to 
be  in  proper  form  or  if  there  is  nothing  to  arouse  suspicion, 
the  vessel  which  has  been  stopped  may  continue  its  voyage. 
Neutral  vessels  destined  for  scientific  expeditions  may  also 
continue  their  voyages  provided  they  observe  the  laws  of 
neutrality. 

8. — Search 

Abticle  19.  If  the  vessel's  papers  are  not  in  proper 
form,  or  if  upon  the  visit  being  made  there  appears  ground 
for  suspicion,  as  provided  in  the  following  article,  the  officer 
who  makes  the  visit  is  authorized  to  proceed  to  search  the 
vessel.  The  vessel  may  not  oppose  this;  if  it  nevertheless 
does  so,  search  may  be  made  by  the  use  of  force. 

Abticle  20.  There  is  ground  for  suspicion  in  the  fol- 
lowing cases: 

1.  When  the  vessel  which  has  been  stopped  does  not 
heave  to  at  the  invitation  of  the  war  vessel ; 

2.  When  the  vessel  which  has  been  stopped  opposes  a 
visit  to  the  secret  places  supposed  to  conceal  the  ship's  papers 
or  contraband  of  war; 

3.  When  there  are  two  sets  of  papers,  or  false,  or  al- 
tered, or  secret  papers,  or  insufficient  papers,  or  no  papers 
at  all; 

4.  When  the  papers  have  been  thrown  into  the  sea  or 
destroyed  in  any  other  fashion,  especially  if  these  acts  have 
occurred  after  the  vessel  could  discover  the  approach  of  the 
war  vessel; 

5.  When  the  vessel  which  has  been  stopped  is  sailing 
under  a  false  flag. 

Ahtici.e  21.    Persons  charged  with  making  the  search 


50      Reaolutiotu  of  the  Institute  of  International  Law 

cannot  open  or  break  into  closets,  lodgings,  trunks,  cash 
boxes,  casks,  half  casks,  or  other  receptacles  which  may  con- 
tain part  of  the  cargo,  nor  arbitrarily  examine  articles  form- 
ing part  of  the  cargo  which  are  spread  about  openly  on  the 
vessel. 

Article  22.  In  the  cases  where  there  are  grounds  for 
suspicion  as  mentioned  in  Article  20,  if  there  is  no  resistance 
to  the  search  the  officer  who  proceeds  to  make  it  should  have 
the  containers  opened  by  the  master  and  make  the  examina- 
tion of  the  cargo  openly  on  the  vessel  in  the  presence  of  the 
master. 

4. — Seizure 

Abticle  28.  Seizure  of  a  vessel  or  cargo,  enemy  or 
neutral,  can  occur  only  in  the  following  cases: 

1.  When  the  result  of  the  visit  shows  that  the  papers 
are  not  in  proper  form; 

2.  In  all  the  cases  where  the  grounds  for  suspicion  men- 
tioned in  Article  20  exist; 

8.  When  it  is  discovered  by  the  visit  or  search  that  the 
vessel  which  has  been  stopped  is  transporting  articles  for 
the  account  of  the  enemy,  or  destined  to  the  enemy ; 

4.  When  the  vessel  is  taken  in  the  act  of  violating  a 
blockade; 

5.  When  the  vessel  participates  in  the  hostilities  or  is 
intended  to  take  part  therein. 

5.— Nationality  of  the  Vessel,  Cargo  and  Crew 

Article  24.  The  nationality  of  the  vessel,  its  cargo  and 
crew  should  be  shown  in  the  ship's  papers  found  upon  the 
vessel  which  has  been  seized,  provided  however  that  there 
may  always  be  a  subsequent  production  before  the  prize 
courts. 

Article  25.  The  question  as  to  whether  the  conditions 
as  to  nationality  are  fulfilled  is  decided  in  accordance  with 
the  law  of  the  State  to  which  the  vessel  belongs. 

Article  26.  The  legal  document  showing  the  sale  of  an 
enemy  vessel  made  during  the  war  must  be  perfect,  and  \he 


Iriternational  RegulatioTu  Concerning  Prizes       51 


vessel  should  be  registered  before  it  leaves  the  port  of  de- 
parture, and  in  accordance  with  the  law  of  the  country 
whose  nationality  it  acquires.  The  new  nationality  cannot 
be  acquired  by  a  vessel  which  is  sold  during  a  voyage. 

ARTICLE  27.  The  ship's  papers  required  by  interna- 
tional law  are  the  following: 

1.  Documents  relating  to  the  ownership  of  the  vessel; 

2.  Bill  of  lading; 

8.  List  of  the  crew,  with  an  indication  of  the  nationality 
of  the  master  and  the  crew; 

4.  Certificate  of  nationality,  if  the  dociunents  men- 
tioned under  8  do  not  cover  it; 

5.  Log-book. 

Ahticle  28.  The  documents  listed  in  the  preceding 
article  should  be  drawn  up  clearly  and  without  ambiguity  in 
order  to  be  adequate  proof. 

AsncLE  29.  If,  in  ascertaining  whether  it  is  a  case  for 
seizure,  there  is  evidence  as  to  the  nationality  or  destination 
of  the  vessel,  or  as  to  the  nature  of  the  cargo,  or  as  to  the 
nationality  of  the  master  and  crew,  depending  upon  which 
point  is  at  issue,  and  one  of  the  ship's  papers  ordinarily  re- 
lating to  this  question  is  lacking,  the  mere  absence  of  this 
paper  is  not  a  ground  for  seizure,  provided  however  that  the 
ship's  other  papers  are  in  perfect  agreement  on  the  point  in 
question. 

6. — Transportation  Forbidden  During  the  War 

Aeticle  80.  During  the  war  objects  capable  of  being 
immediately  employed  for  war  purposes  and  transported  by 
neutral  or  enemy  national  merchant  vessels  for  the  account 
of  or  destined  to  the  enemy  (contraband  of  war)  are  subject 
to  seizure.  The  belligerent  governments  shall  determine  in 
advance,  in  each  war,  the  objects  which  they  will  consider 
contraband. 

Articij;  81.  The  contraband  of  war  must  be  actually 
on  board  at  the  time  the  search  is  made. 

Ahticle  32.  Objects  necessary  for  the  defense  of  the 
crew  and  ship  are  not  considered  contraband  of  war  unless 


% 


I'll 

ill' 


IL 


IL 


82      Retdutiotu  of  the  Inttitute  of  International  Law 

the  vessel  has  made  use  thereof  to  resist  being  stopped,  or 
to  resist  visit,  search  or  seizure. 

Aeticle  88.  The  vessel  which  has  been  stopped  be- 
cause it  carries  contraband  of  war  may  continue  its  voyage 
if  its  cargo  is  not  composed  exclusively  or  principally  of 
contraband  of  war,  if  the  master  is  ready  to  deliver  to  the 
belligerent  vessel  the  contraband  of  war,  and  if  the  com- 
mander of  the  cruiser  believes  that  the  unloading  may  take 
place  without  difficulty. 

Abticle  84.  In  the  same  category  as  transportation  of 
contraband  of  war  (Article  80)  is  transportation  of  troops 
for  military  operations  by  the  enemy  on  land  and  sea,  as 
well  as  transportation  of  official  correspondence  of  the  enemy 
by  neutral  or  enemy  national  merchant  vessels. 

7. — Blockade 

Article  85.  A  blockade  which  has  been  declared  and 
notice  thereof  given  is  effective  when  there  exists  a  real 
danger  in  entering  or  leaving  a  blockaded  port,  because 
of  the  fact  that  a  sufficient  number  of  war  vessels  are  sta- 
tioned there,  or  are  but  temporarily  absent  from  such  station. 

Abticle  86.  The  declaration  of  blockade  should  deter- 
mine not  only  the  limits  of  the  blockade  by  latitude  and 
longitude,  and  the  exact  moment  when  the  blockade  will 
begin,  but  also,  in  the  proper  case,  the  period  which  may  be 
allowed  merchant  vessels  to  unload,  reload  and  leave  the 

port  (Article  7).  »     ,      ,,    ,    j 

Article  87.  The  officer  in  charge  of  the  blockade 
should  also  transmit  a  notice  of  the  declaration  of  blockade 
to  the  authorities  and  consuls  of  the  blockaded  place.  The 
same  formalities  shall  be  observed  when  a  blockade  which  has 
ceased  to  be  effective  has  been  reestablished  and  when  a 
blockade  is  extended  to  r-'w  points. 

Article  88.  If  the  blockading  vessels  leave  their  posi- 
tion for  any  other  reason  than  stress  of  weather,  the  blockade 
is  considered  as  raised;  it  should  then  be  again  declared  and 
notice  again  given. 


International  Regulationn  Concerning  Prizea       58 

Akticij!  80.  Merchant  vessels  are  forbidden  to  enter  or 
leave  the  places  and  ports  which  are  in  a  state  of  effective 
blockade. 

Ahticle  40.  However,  merchant  vessels  are  permitted 
to  enter,  in  case  of  stress  of  weather,  the  blockaded  port,  but 
only  after  the  officer  in  charge  of  the  blockade  has  ascer- 
tained that  the  force  majeure  continues. 

Abticle  41.  If  it  is  evident  that  a  merchant  vessel  ap- 
proaching a  blockaded  port  did  not  know  of  the  existence  of 
a  blockade  which  has  been  declared  and  is  effective,  the 
officer  in  charge  of  the  blockade  shall  notify  the  vessel  of  it, 
entering  the  notice  in  the  vessel's  papers  on  board  the  ship 
which  has  been  so  notified,  making  the  entry  at  least  in  the 
certificate  of  nationality  and  in  the  log-book,  noting  the  date 
of  the  notice,  and  shall  invite  the  vessel  to  leave  the  blockaded 
port,  and  authorize  it  "o  continue  its  voyage  to  an  un- 
blockaded  port. 

Article  42.  Ignoronce  of  the  blockade  is  permissible 
when  the  time  which  has  elapsed  since  the  declaration  of  the 
blockade  is  too  short  for  the  vessel  which  has  already  begun 
its  voyage  and  has  attempted  to  enter  the  blockaded  port, 
to  know  of  the  blockade. 

Aeticle  48.  A  merchant  vessel  shall  be  seized  for  viola- 
tion of  blockade  when  it  has  attempted  by  force  or  strategy 
to  penetrate  the  line  of  blockade,  or  when,  after  having  been 
sent  back  once,  it  tries  again  to  enter  the  same  blockaded 
port. 

Ahticle  44.  Seizure  on  the  ground  of  violation  of 
blockade  shall  not  be  justified  by  the  fact  that  a  merchant 
vessel  has  gone  in  the  direction  of  the  blockaded  port,  or  by 
the  character  of  the  lading  alone,  or  by  the  mere  fact  that 
the  destination  of  the  vessel  is  such  a  port.  In  no  case  can 
the  doctrine  of  continuous  voyage  justify  condemnation  for 
violation  of  blockade. 

^.—Formalities  Which  Follow  Seizure 
Abticle  45.   After  seizure  the  captor  shall  close  the 
hatches  and  the  powder  magazines  of  the  vessel  which  has 


'ff 


Retolutiont  of  the  ItiMtitute  of  International  Jmw 

becii  8eiz«^,  and  seal  the  same.    He  shall  d    'he  same  with 
the  cargo  after  it  has  Iwen  inventoried. 

Abticij:  46.  No  part  of  the  cargo  shall  be  sold,  dis- 
charged, disnrrangwl  nor,  in  general,  taken  away,  consumed 
or  damaged. 

If  however  the  cargo  consists  of  things  which  easily  spou, 
or  if  the  articles  are  damaged,  the  captor  shall  take  the  most 
suitable  measures  to  preserve  the  cargo,  with  the  consent  and 
in  the  presence  of  the  master,  as  well  as  in  the  presence  of  a 
consul  of  the  nationality  of  the  vessel  which  has  been  seized, 
if  there  is  one  to  be  found  in  the  neighborhood  of  the  place 
of  capture.  The  commander  of  the  captor  vessel  shall,  for 
this  purpose,  proceed  to  an  inspection  of  the  cargo. 

Abticle  47.  The  captor  shall  draw  up  an  inventory 
of  the  vessel  which  has  been  seized  and  its  cargo,  as  well  as 
a  list  of  the  persons  found  on  board,  and  shall  put  upon  the 
vessel  which  has  been  seized  a  sufficient  crew  to  ensure  posses- 
sion of  the  vessel  and  maintenance  of  order  thereon. 

Article  48.  The  captor  shall  seize  all  of  the  ship's 
papers,  documents  and  letters  which  may  be  found  on  the 
ship.  These  papers,  documents  and  letters  shall  be  gathered 
together  in  a  parcel  under  the  seals  of  the  commander  of 
the  war  vessel  and  of  the  master  of  the  vessel  which  has  been 
seized;  an  inventory  of  these  papers,  documents  and  letters 
shall  be  drawn  up  and  the  commander  of  the  war  vessel 
shall  declare  in  writing  in  the  procds-verbal  that  these  are 
all  the  papers  found  upon  the  vessel;  there  shall  also  be 
added  a  nv.ce  showing  what  papers  were  lacking  at  the  time 
of  seizure  and  the  state  in  which  the  papers  seized  were 
found,  especially  if  they  appear  to  have  been  altered. 

Article  49.  The  captor  shall  draw  up  a  proch-verhal 
of  the  seizure  as  well  as  of  the  state  of  the  vessel  and  cargo, 
mentioning  therein  the  hour  and  day  of  the  seizure;  in  what 
latitude  it  took  place;  the  grounds  therefor;  the  name  of  the 
vessel  and  of  the  master;  the  number  of  men  in  the  crew; 
under  what  flag  the  vessel  was  sailing  at  the  time  it  was 
st(.pped  and  whether  there  was  resistance  on  the  part  of 
the  vessel,  and  the  nature  of  its  resistance.    The  inventories 


International  Regulation*  Conccrniny  Prizet        55 

of  the  ves»el,  car^,  and  ship's  papers,  shall  be  added  to  the 
proch'Verbal.  with  a  note  therein  that  the  inventories  have 
been  drawn  up.  A  copy  of  the  proch-verb''l  shall  be  trans- 
mitted to  the  suiH-rior  niilitarj'  authority  of  lue  vessel  which 
has  been  captured. 

Abticle  50.  In  the  following  cases  the  captor  will  be 
pernjitted  to  burn  or  sink  the  enemy  '  vc"*sel  which  has  been 
seized,  after  having  sent  the  persons  found  on  Iwrnrd  to  the 
war-ship,  and  discharged  as  nmch  as  possible  of  the  cargo, 
and  after  the  commander  of  the  captor  vessel  has  taken 
charge  of  the  ship's  papers  and  imjjortant  objects  for  use 
m  judicial  proceedings  and  settlement  of  claims  of  owners 
of  the  cargo  for  damages  and  interest : 

1.  When  it  is  impossible  to  keep  the  vessel  afloat,  on 
account  of  its  bad  condition,  in  a  rolling  sea ; 

".  When  the  vessel  sails  so  poorly  that  it  cannot 
follow  the  war  vessel  and  may  easily  be  retaken  by  the 
enemy; 

8.  When  the  approach  of  a  superior  force  of  the  enemy 
arouses  the  fear  that  the  vessel  may  be  retaken ; 

4.  When  the  war  vessel  is  unable  to  put  a  sufficient  crew 
upon  the  vessel  which  has  been  seized  without  diminishing 
too  grentiv  the  crew  necessarj'  to  its  own  safety; 

5.  When  the  port  to  which  it  would  be  possible  to  take 
the  vessel  which  has  been  sti/ed  is  too  fnr  away. 

Article  51.  A  prods-verbal  shall  be  drawn  up  concern- 
ing the  destruction  of  the  vessel  which  has  been  seized  and 
the  grounds  therefor:  this  proch-vcrhal  shall  be  transmitted 
to  the  superior  military  authority  anil  to  the  nearest  court 
of  in(iuiry.  and  the  latter  shall  examine,  and  if  necessary 
complete,  the  documents  relating  thereto  and  transmit  them 
to  the  prize  court. 

Article  52.  The  only  persons  on  board  the  ship  which 
has  been  seized  who  shall  he  considered  prisoners  of  war  are 
those  who  form  part  of  t'e  military  force  of  the  enemy,  and 

•The  word  'enemy'  was  omitted  by  mistake  from  the  definitive  text  (^n- 
wiinirc.  vol.  6,  p.  22\),  but  the  Institute  made  formal  rectiHcafion  of  the  .irticle 
at  its  Heidcll(erg  session,  ibid.,  vol.  9,  pp.  500,  iOl. 


56      Resolutions  of  the  Imtitute  of  International  Law 

those  who  have  assisted  the  enemy  or  are  suspected  of  having 
assisted  the  enemy. 

Article  68.  The  master,  the  supercargo,  the  pilot  and 
other  persons  whom  it  will  be  necessary  to  hear  in  order  to 
ascertain  the  facts,  shall  be  temporarily  retained  on  board. 
These  persons  are  not  authorized  to  quit  the  vessel,  after 
giving  their  depositions,  except  at  the  order  of  the  court  of 
inquiry. 

Aeticle  54.  The  persons  found  and  kept  on  board  shall 
be  fed,  and  in  case  of  necessity,  clothed  and  cared  for  by  the 
government  of  the  State  to  which  the  captor  vessel  belongs. 
The  master  shall  furnish  security  for  the  expenses  resulting 
therefrom,  which  shall  be  repaid  according  to  the  judgment. 

Aeticle  55.  The  members  of  the  crew  shall  be  allowed 
to  keep  their  peisonal  effects. 

Article  56.  The  capto^  may  not  disembark  in  waste 
and  uninhabited  countries  the  members  of  the  crew  who  are 
not  needed  at  the  inquiry  and  who  must  be  sent  away  im- 
mediately for  lack  of  space  upon  the  captor  vessel  or  lack 
of  provisions.  But  the  captor  is  permitted  to  transfer  the 
men  to  neutral  or  allied  vessels  which  he  may  meet,  to  be 
disembarked  in  cultivated  and  inhabited  territories. 

Abticle  57.  The  captain  of  the  captor  vessel  is  respon- 
sible for  the  good  treatment  and  entertainment  of  the  per- 
sons found  on  board  the  vessel  seized  by  the  crew  of  the 
captor  vessel  and  by  the  crew  which  mans  the  vessel  seized ; 
he  should  not  permit  even  those  persons  who  are  prisoners 
of  war  to  be  employed  at  humiliating  occupations. 

9. — Taking  the  Vessel  Seized  into  a  Seaport 
Articij:  58.    The  vessel  seized  shall  be  taken  to  the  near- 
est port  of  the  captor  State  or  to  a  port  of  an  allied  Power 
where  a  court  of  inquiry  may  be  found  to  examine  into  the 
matter  of  the  vessel  seized. 

Article  59.  The  vessel  seized  may  not  be  taken  to  the 
port  of  a  neutral  Power  except  on  account  of  some  peril  of 
the  sea,  or  when  the  war  vessel  may  be  pursued  by  a  superior 
enemy  force. 


International  Regulations  Concerning  Prizes       67 

Aexicle  60.  When,  on  account  of  a  peril  of  the  sea,  the 
war  vessel  has  taken  refuge  with  the  vessel  seized  in  a  neu- 
tral port,  they  must  quit  the  port  as  soon  as  possible,  after 
the  tempest  has  passed.  The  neutral  State  has  the  right  and 
the  duty  to  inspect  the  war  vessel  and  the  vessel  seized  dur- 
ing their  stay  in  the  port. 

Article  61.  When  the  war  vessel  has  taken  refuge  with 
the  vessel  seized  in  a  neutral  port,  because  it  is  pursued  by  a 
superior  enemy  force,  the  prize  must  be  released. 

Article  62.  The  vessel  seized  and  the  cargo  shall  be 
preserved  intact  so  far  as  possible  during  their  voyage  to  the 
port;  the  cargo  shall  be  closed  and  sealed,  except  in  case  the 
unsealing  and  opening  of  the  cargo  may  be  deemed  neces- 
sary in  the  interest  of  the  preservation  thereof,  and  the  mas- 
ter consents  thereto. 


\0.-— Organization  and  Procedure  of  the  Court  of  Inquiry  in 
Prize  Matters  in  the  Port  of  Arrival ' 

Article  68.  The  court  of  inquiry,  in  the  port  where  the 
seized  vessel  arrives,  is  composed  of  members  of  the  magis- 
tracy. The  court  hears  the  naval  officers  and  customs  em- 
ployees as  experts. 

Article  64.  Representatives  of  the  captor  State  and 
the  State  of  the  seized  vessel  are  present  during  the  sessions 
of  the  court.  The  captured  person  or  persons  are  ordinarily 
represented  by  the  consul  of  their  respective  States,  or  if 
there  is  not  one  in  the  port,  by  the  consul  of  a  friendly  neu- 
tral State.  In  the  absence  of  such  a  consul,  the  captured 
persons  are  represented  by  agents  chosen  by  them  and  acting 
under  duly  executed  powers  of  attorney. 

Article  65.  The  officer  in  charge  of  the  vessel  seized 
delivers  it,  as  well  as  its  cargo  and  crew,  to  the  court  of 
inquiry,  and  the  latter  issues  orders  as  to  the  vessel,  its  cargo 
and  crew. 

Article  66.    The  officer  in  charge  of  the  vessel  seized 

'  Articles  63  to  84  were  adopted  at  Munich,  Septemt)er  6  and  7,  1983.  An- 
nuairt,  vol.  7,  pp.  18i-190. 


Hi 


ti 


% 
till 

"i  < 
•III 

I 


P  « 


58      Resolutions  of  the  Institute  of  Internatioruil  Imw 

shall  deliver  to  the  court  within  twenty-four  hours  after  the 
arrival  of  the  vessel  in  the  port: 

1.  The  proems-verbal  drawn  up  after  the  seizure  (Arti- 
cle 49) ; 

2.  The  papers  placed  in  a  sealed  envelope  after  the 

seizure  (Article  48) ; 

3.  The  inventories  of  the  vessel,  the  cargo  and  the  pa- 
pers, documents  and  letters  found  on  board  the  vessri.  which 
were  drawn  u^'  after  the  seizure  (Articles  47  and  48) ; 

4.  The  list  of  persons  found  on  board,  drawn  up  after 
the  seizure  (Article  47) ; 

5.  A  report  of  the  voyage  to  the  port  of  arrival. 
Article  67.    At  the  same  time  the  officer  in  charge  of 

the  vessel  seized  certifies  that  the  papers  arc  the  same  ones 
found  on  board  the  vessel  seized  and  that  they  arc  in  the 
condition  in  which  they  were  found  on  board.  In  a  case 
where    no    papers    were    found,    the    facts    should    be 

stated. 

Article  68.  The  officer  in  charge  of  the  vessel  seized 
brings  before  the  court  for  hearing  at  least  the  captain  or 
master,  the  supercargo  and  the  pilot. 

Article  69.  The  court  of  inquiry,  after  having  assured 
itself  in  the  presence  of  the  officer  in  charge  of  the  vessel 
seized,  and  of  the  captured  persons,  the  captain  or  master, 
the  pilot  and  supercargo,  that  the  seals  attached  to  the  ship, 
the  cargo  and  elsewhere,  are  intact,  then  proceeds,  in  the 
presence  of  the  same  persons,  to  unseal  and  open  the  sealed 
envelope  which  has  been  delivered  to  it;  it  records  and  makes 
a  list  of  the  papers  found  therein  and  of  the  persons  and 
inventories  of  the  vessel  and  cargo,  using  as  a  basis  the 
lists  and  inventories  drawn  up  after  the  seizure  to  check 
and  complete,  if  necessary,  the  later  lists  and  inventories; 
it  also  ascertains  whether  the  persons  are  present,  and  veri- 
fies the  result. 

Article  70.  The  officer  in  charge  does  not  leave  the 
vessel  seized  before  turning  it  over,  with  its  cargo,  to  a 
keeper  designated  by  the  court  of  inquiry,  or  before  this 
court  has  affixed  its  seals.    After  having  accomplished  all  the 


International  Regulations  Concerning  Prizes       59 

acts  which  are  prescribed,  the  officer  in  charge  ceases  to  be 
responsible  for  the  vessel,  cargo  and  crew,  and  the  responsi- 
bility passes  to  the  keeper,  who  delivers  a  receipt  to  the 
officer  in  charge  for  the  vessel,  cargo  and  crew. 

Article  71.  The  keeper  appointed  by  the  court  of  in- 
quiry accepts  delivery  of  the  vessel  seized,  and  its  cargo,  and 
takes  charge  of  urgent  repairs  to  the  vessel,  the  preservatirn 
of  the  cargo,  as  well  as  the  maintenance  of  the  persons  re- 
maining on  board. 

Ahticle  72.  The  vessel  seized  is  preser\'ed  as  well  as 
possible  and  the  captor  State  bears  the  expense  thereof  until 
final  judgment.  The  court  of  inquiry,  however,  upon  the 
advice  of  experts,  places  on  public  sale,  merchandise  which 
is  subject  to  deterioration  and  the  vessel  if  it  cannot  be  pre- 
served because  of  its  bad  condition,  or  because  its  actual 
value  is  not  consonant  with  the  expense  which  its  preserva- 
tion would  entail.  The  public  sale  is  announced  both  in  the 
place  where  it  is  to  take  place  and  also,  so  far  as  the  vessel 
seized  is  concerned,  in  the  domicile  of  the  owner  of  the 
vessel.  Finally,  by  virtue  of  a  decision  of  the  court  and  the 
consent  of  the  captor  State,  the  court  delivers  the  vessel, 
after  appraisal,  to  a  claimant  who  proves  that  he  is  the  law- 
ful owner,  provided  that  he  deposits  with  the  court  the 
amount  of  the  appraised  value.  A  similar  deposit  is  made 
of  the  proceeds  of  a  public  sale. 

Abticle  73.  The  court  releases  a  captured  vessel  which 
is  not  suspected,  retaining  the  cargo  which  is  suspected,  in 
case  the  regulations  require  the  condemnation  of  the  cargo 
alone. 

Article  74.  Objects  which  cannot  be  seized  in  any  case 
are  separated  from  the  cargo;  they  are  delivered  to  the  law- 
ful owners.  If  all  the  interested  parties  do  not  consent 
thereto,  he  who  receives  the  objects  should  deposit  with  the 
tribunal  the  appraised  value  thereof,  as  determined  by  ex- 
perts. Under  the  same  condition  and  with  the  consent  of  the 
parties,  the  court  delivers  the  cargo  to  the  lawful  owner. 
The  claimants  bear  the  expenses  of  care  and  insurance  of 
the  cargo  not  delivered,  until  the  final  decision. 


60      Resolutions  of  the  Institute  of  International  Law 

Article  75.  If  the  court  deems  it  necessary  to  discharge 
the  cargo  to  preserve  it,  experts  named  and  sworn  by  the 
court  inventory  it  in  the  presence  of  the  parties,  and  place 
it  in  a  warehouse  closed  and  sealed  with  the  seals  of  the 
representative  of  the  captor  State,  of  the  captm-ed  persons 
and  of  the  tribunal.  The  objects  which  the  expe-la  declare 
liable  to  early  deterioration  are  sold  at  public  u.  under 
order  of  the  court. 

Ahticle  76.  Procha-verhaux  are  drawn  up  concerning 
the  taking  of  possession  of  the  vessel  and  cargo,  as  well  as 
concerning  the  discharge,  storing,  closing,  sealing  and  de- 
livery; the  members  of  the  court  and  the  parties  present  sign 
these  procta-verhaux. 

Article  77.  Of  the  persons  found  on  board  the  vessel 
seized,  the  members  of  the  enemy  military  force  are  imme- 
diately sent  as  prisoners  of  war  to  the  military  authorities 
of  the  same  or  the  nearest  town,  and  these  authorities  place 
them  at  the  disposition  of  the  court  to  be  heard  when  de- 
manded by  it.  Those  who  have  assisted  the  enemy  or  are 
suspected  of  having  assisted  the  enemy  are  delivered  to  the 
military  authorities.  The  other  persons  found  on  board  the 
vessel  remain  there  under  surveillance  during  the  period 
fixed  by  the  court,  if  and  so  long  as  the  court  of  inquiry 
deems  their  depositions  necessary.  If  the  vessel  is  sold  or 
destroyed  in  the  port  of  arrival,  those  who  would  have  been 
obliged  to  remain  on  board  the  vessel  shall  remain  under 
arrest  by  the  authorities  until  a  decision  of  the  court.  When 
the  inquiry  has  been  concluded  the  captain  or  master  and 
the  supercargo  are  not  set  at  liberty  unless  bond  judicin 
siati  is  furnished. 

Article  78.  The  court  of  inquiry  has  for  its  principal 
duty  the  com  '  -<  ixposition  of  the  facts,  seeking  particu- 
larly to  know  i..  .nat  manner  the  vessel  was  stopped,  how 
visit,  and  eventually  search,  as  well  as  seizure  were  made, 
and  whether  the  captor  has  acted  in  a  lawful  manner,  and  the 
grounds  on  which  seizure  was  made.  If  the  captor  found  no 
papers  on  board  the  vessel  seized,  or  if  those  found  were 
incomplete,  the  court  questions  the  persons  found  on  board 


International  Regulations  Concerning  Prizes         61 

and  secures  information  from  the  owners  of  the  vessel  and 
cargo,  or,  if  they  are  not  known,  by  means  of  notices  in- 
serted in  newspapers  of  large  circulation,  in  which  the 
court  makes  known  the  fact  of  seizure  with  the  exact 
description  of  the  vessel  and  cargo,  and  invites  inter- 
ested persons  to  prove  their  rights  therein  within  a  given 
period. 

Abticle  79.  The  tribunal,  after  having  ascertained  the 
facts  in  a  preliminary  way,  invites  the  captor  State  and  the 
lawful  claimants  to  be  present,  within  a  period  of  four  weeks 
at  least,  at  the  further  sessions  of  the  court  and  to  present 
their  claims  m  person  or  through  attorneys  duly  authorized 
for  this  purpose.  The  invitation  comprises  a  succinct  riaumS 
of  the  facts  as  provisionally  ascertained.  In  the  meantime 
the  officer  in  charge  of  the  vessel  seized  represents  the  captor 
State,  and  the  captain  or  master,  or  the  supercargo,  or  the 
appropriate  consul,  represents  the  captured  persons.  The 
court  designates  trustees  to  take  care  of  the  interests  of 
claimants  not  represented. 

Ahticle  80.  Thecourt,  after  having  examined  the  jour- 
nals, documents  and  papers  sent  to  it  by  the  officer  in  charge 
of  the  vessel  seized  (Article  66),  immediately  begins  the 
hearing  of  the  persons  who  were  on  board.  It  is  obliged  to 
hear  the  officer  in  charge  of  the  vessel,  as  well  as  the  captor, 
in  cases  where  the  two  are  not  one  and  the  same  person, 
also  the  captain  or  master,  the  pilot,  and  the  supercargo 
when  the  captain  or  the  master  himself  is  not  charged  with 
the  supervision  of  the  cargo. 

Article  81.  The  representatives  of  the  parties  have 
the  right: 

1.  To  be  present  at  all  hearings  in  the  case; 

2.  To  present  in  writing  or  orally,  requests  relative 
to  the  communication  or  production  of  documents,  as  well 
as  the  argument  and  submission  of  the  case  for  judgment. 
or  to  hasten  the  pro*  ceding  when  the  court  delays  in  begin- 
ning or  when  there  have  been  delays  in  the  course  of  the 
examination; 

3.  To  request  a  hearing  of  persons  whom  the  court  has 


jh 


fii 


* ,  'i 


62      Reaolutions  of  the  Institute  of  International  Imw 

not  interrogated  and  to  present  questions  to  lie  put  to  the 
persons  interrogated. 

Abticij:  82.  The  examination  of  the  case  shall  not  be- 
gin until  the  captor  State  and  the  claimants  are  represented. 
The  court  advises  these  representatives  fully  of  all  of  tlu" 
formalities  complied  with  up  to  that  time  and  communicates 
the  inventories  and  other  diwuments  to  the  interested  parties, 
in  order  that  they  may  learn  the  contents  thereof. 

Ahticle  88.  When  the  inquiry  has  been  condudetl,  the 
court  makes  this  fact  known  and  asks  the  parties  if  thty 
desire  to  add  anything,  and  what  requests  they  still  have  to 
present.  After"  having  heard  the  requests  of  the  parties 
and  examined  into  the  question  as  to  whether  the  record 
of  the  inquiry  is  complete,  the  court  submits  the  record 
thereof  to  tlie  interested  parties,  then  invites  the  dele- 
gate of  the  captor  State  to  present,  within  two  weeks  at  the 
longest,  a  final  deriand  which  is  comnmnicated  to  the  claim- 
ants in  order  that  they  may  reply  thereto  within  the  same 
period.  After  receiving  the  two  declarations,  or  after  the 
expiration  of  the  periods  fixed  for  their  receipt,  in  case  one 
or  the  other  has  not  been  received,  the  court  proposes  an 
amicable  adjustment  to  the  parties,  and  only  when  such  an 
arrangement  is  unsuccessful  within  a  period  of  two  weeks. 
does  the  court  transmit  the  complete  record  and  all  docu- 
ments which  have  been  submitted  to  it  from  the  beginning, 
to  the  court  of  prize,  notice  of  such  transmission  being  given 
to  the  captor  State  and  claimants. 

Article  84.  A  proces-vcrhal  is  drawn  up  covering  all 
of  the  formalities  which  have  been  observed  in  the  examina- 
tion.   The  persons  interrogated  sign  their  depositions.' 


MARINE  INSURANCE^ 

Following  the  decision  of  the  Institute  at  Turin  to  study  in  succession 
matters  of  commercial  law  in  which  uniformity  is  especially  desir.ibU. 
and  particularly  the  principal  subjects  of  maritime  law,  Mr.  Sacerdoti 

»  For  Artidcs  85-H?,  see  post.  p.  71.  *  Tableau  tjhiiral,  p.  <t'. 


Marine  Insurance 


68 


wai  inrtrncted  to  consider  especially  marine  insurance.  At  the  session 
of  Munich  (1883)  he  presented  a  report  and  conclusions  in  detail;  but  the 
Institute,  at  the  request  of  the  reporter  himself,  limited  itself  to  adopting 
three  resolutions  on  Septpmber  7,  1883,  establishing  principles  to  serve 
US  guides  to  the  committee  in  its  future  studies.  These  resolutions  were 
as  follows: ' 

1.  It  is  not  expedient  to  draw  up  a  model  policy,  com- 
plete in  all  details. 

2.  Only  provisions  either  of  a  prohibitory  or  of  a  man- 
datory character,  or  those  which  although  simply  interpre- 
tative are  of  such  importance  that  uniformity  is  desirable, 
shall  be  selected  from  the  above-mentioned  conclusions,  or 
others,  for  insertion  in  the  draft  to  be  made  and  submitted 
at  the  next  session. 

3.  The  committee  shall  also  consider  the  conflict  of  laws 
relating  to  commercial  maritime  law.' 


INTERNATIONAL  RIVERS-THE  KONGO* 

As  early  as  the  session  at  Paris,  1878,  Mr.  Moynier  had  called  the 
attention  of  the  Institute  to  the  navigation  of  the  Kongo  and  to  the 
necessity  of  subjecting  it  to  international  supervision.*  Mr.  de  Laveleye, 
in  Ins  turn,  in  the  Revue  de  droit  international,''  had  championed  the  idea 
of  neutralization  or  international  regulation  for  this  river.  This  idea  of 
ntutralization  found  an  opponent  in  Sir  Travers  Twiss.»  At  the  session 
of  Munich,  Mr.  Moynier  read  to  the  Institute  on  .September  4,  1883,  a 
c.irefully  studied  memoir,'  which  was  referred  during  the  same  session 
to  a  committee.  On  the  seventh  of  the  same  month  this  committee, 
thruugh  Mr.  Arnt«,  its  reporter,  proposed  the  following  Conclusion,  which 
was  adopted :  * 

The  Institute  of  International  Law  expresses  the  vceu 
that  the  principle  of  freedom  of  navigation  for  all  nations  be 
applied  to  the  Kongo  River  and  its  tributaries,  and  that  all 
Powers  come  to  an  agreement  concerning  the  measures  suit- 
able for  the  prevention  of  conflicts  between  civilized  nations 
m  equatorial  Africa. 


'  /(iiiiiiairp,  vol.  7,  pp.  100-123. 
'  Sfe  poit,  p.  65. 

*  Tableau  general,  p.   147. 

*  Annuaire,  vol.  3,  p.  154. 


•  Vol.  XV,  1883,  p.  254. 
'Ibid.,  pp.  437,  547. 
'  .Inr.uniri^^  vn!.  7,  p.  ?50. 
•Ibid.,  p.  278. 


Ill 


?.v' 


64      Retolutiotu  of  the  Institute  of  Intcrmtionnl  Imw 

The  Institute  instructs  its  Bureau  to  transmit  this  V(rn 
to  the  different  Powers,  adding  thereto,  merely  as  a  motter 
of  information,  the  memorandum  presented  by  one  of  its 
members,  Mr.  Moynier,  at  the  session  of  September  4,  1883. 


fi 


COMMUNICATION  OF  INTERNATIONAL 
TREATIES ' 

At  the  session  of  Munich  (1883)  the  Institute,  at  the  sugRestion 
of  Mr.  von  Martit«,  appointed  a  committee  to  study  the  question:  "  By 
what  means  may  a  more  universal,  prompt  and  uniform  publication  of 
treaties  and  conventions  between  the  various  States  be  secured  ?  "  ' 

At  the  session  of  Brussels  (1883)  Mr.  von  MartiU  communicated  to 
the  meeting  a  memoir  upon  this  question;  this  memoir  appeared 
in  the  Revue  de  droit  international.^  At  the  suggestion  of  the  same  mem- 
ber the  Institute  adopted  in  plenary  session  on  September  11,  1885,  a 
vceu  in  these  terms :  * 

The  Institute  of  International  Law  expresses  the  vaen 
that  the  high  governments  of  the  various  States  may  be  will- 
ing to  see  that  treaties  and  international  acts  concluded  by 
them,  the  publication  of  which  is  not  forbidden  by  reasons 
of  State  or  of  political  expediency,  may  be  collected  and 
published  in  special  collections,  either  officially,  or  througli 
the  enterprise  of  competent  men,  encouraged  and  fostered 
by  the  States. 

The  Institute  also  desires  that  these  publications  be  made 
as  general  and  complete  as  possible,  in  order  that  they  may 
furnish  the  science  of  international  law  with  perfect  and 
exact  knowledge  as  to  the  legal  relations  actually  in  force 
between  the  different  States. 

The  Institute  instructs  its  Bureau  to  transmit  this  vceu 
to  the  high  governments,  inclosing  therewith,  as  a  matter  of 
information,  the  memoir  which  has  been  presented  to  the 
Institute  by  one  of  its  members.' 

'  Tableau  g(nira\,  p.  22. 

•  Annuairt,  vol.  7,  p.  295. 

•  Vol.  xviii,  p.  168. 

•  AmiwiiTC,  vol.  9,  p.  933. 

•  For  subsequent  action  of  the  Institute  on  this  subject,  see  poit,  pp.  ^X  ?" 


Maritime  Late  and  Marine  Inturance 


65 


MARITIME  LAW  AND  MARINE 
INSURANCE • 

At  the  lettion  of  Bru..eli  in  1883,  Mr.  Sacerdoti  presented  another 
report  concerning  Marine  iniurance.  and  Mr.  Lyon-Caen  submitted  a 
report  on  Conflict  of  law*  on  the  lubject  of  maritime  law.  The  InsUtute 
voted  on  these  matters  jointly  at  the  session  of  September  1 1,  1885  and 
adopted  the  two  drafts  which  accompanied  the  reports.  Here  is  the  text 
of  these  three  documents: 

I.— Resolution  of  September  li,  1885  * 

The  Institute  of  International  Law,  assembled  in  plenary 
session  at  Brussels,  September  11,  1885, 

Considering  its  decisions  and  previous  labors,  and  espe- 
cially: 

1.  The  preparatory  work  at  the  session  of  Munich,  1888, 
the  questionnaire  and  the  first  report  drawn  up  by  Mr. 
Sacerdoti ; ' 

2.  The  vote  taken  and  the  principles  adopted  at  the 
session  of  Munich;* 

8.  The  second  report  upon  Marine  insurance  presented 
by  Mr.  Sacerdoti; 

4.  The  report  upon  the  Conflict  of  laws  relating  to 
maritime  law,  presented  by  Mr.  Lyon-Caen; 

After  having  examined,  discussed  and  amended  the  con- 
clusions of  Messrs.  Sacerdoti  and  Lyon-Caen  at  the  plenary 
sessions  of  September  10  and  11,  1885,  thanks  the  honorable 
authors  of  these  works  for  the  services  which  they  have  each 
rendered  to  the  uniformity  of  law  and  to  international  law 
m  these  unportant  matters,  decides  that  the  amended  drafts, 
as  above  stated,  shall  be  printed  under  the  supervision  of 
the  Bureau  and  recommended  to  the  special  consideration 
of  the  governments,  as  well  as  to  scientific  bodies  which  are 
considering  the  same  subjects,  and  more  particularly  to  the 
Congress  of  Commercial  Law  which  will  meet  shortly  at 
Antwerp. 


'  Tablmn  gfnfral,  p.  fl7. 
•  AnnuaWf,  vol.  8,  p.  123. 


*  Ihitl,  vol.  7,  p.  lOO. 
'Ibid.,  p.  I3i. 


Wi 


66      Reaolutioru  of  the  Institute  of  International  Law 

II._Dbaft  of  International  Regulation  of  Conflict 
OF  Laws  Reijvtino  to  Makitime  Law 

The  law  of  the  flag  of  the  vessel  should  determine: 

1.  What  public  forninlitics  must  be  complied  with  in 
transferring  property ;  .  .  i     u 

2.  Who  are  the  creditors  of  the  owner  of  the  vessel  who 
have  not  the  right  to  follow  the  same  in  case  it  is  transferred ; 

8.    Whether  the  vessel  may  or  may  not  be  mortgaged ; 

4.  What  public  formalities  must  be  complied  with  in  the 
case  of  maritime  mortgages; 

5.  What  debts  are  guaranteed  by  maritime  liens; 

6.  What  is  the  priority  of  liens  upon  the  vessel; 

7.  What  formalities  must  be  observed  by  the  captain 
who  borrows  on  a  bottomry  bond  in  the  course  of  the  voyage; 

8.  What  is  the  extent  of  the  responsibility  of  the  owner 
of  the  vessel  on  account  of  the  acts  of  the  captain  and  crew, 
especially  whether  he  may  free  himself  by  abandoning  the 
vessel  and  freight; 

9.  WTiat  sort  of  damage  should  constitute  a  general 
damage  to  which  the  interested  parties  should  contribute 
(general  average) ; 

10.  How  the  amount  to  be  contributed  should  be  made 
up,  in  case  of  general  average,  particularly  with  regard  to 
the  amount  to  be  contributed  by  the  owner  of  the  vessel. 

III._Dhaft  of  Uniform  Law  on  IMaeine  iNSxmANCE 

Article  1.  Any  interest  capable  of  being  stated  in 
terms  of  money,  which  a  person  may  have  in  the  preservatii>n 
of  a  vessel  or  its  cargo  from  the  dangers  of  maritime  navi- 
gation, may  be  the  subject  of  marine  insurance.  For  in- 
stance, insurance  may  be  taken  out  to  cover  freight  charjres 
on  merchandise,  or  the  fares  of  passengers,  marine  profit 
on  the  loan  on  the  bottomry  bond,  profit  which  may  be  nuuk 
from  the  merchandise,  and  the  right  to  a  commission  to  Jk> 
received.  The  salaries  of  sailors  which  may  be  excepted  hx 
the  particular  laws  of  each  State  are  excepted  here. 


Marine  Insurance  67 

Abticlk  2.  Insurance  docs  not  cover  as  a  matter  of  law 
the  risks  of  war.  It  applies,  unless  there  is  a  clause  to  the 
contrary,  to  the  breaches  of  trust  and  misdeeds  of  the  cap- 
tain and  the  crew.  It  does  not  apply,  however,  to  a  breach 
of  trust  by  the  captain  in  the  interest  of  the  insured,  unless 
there  is  a  clause  in  the  policy  expressly  extending  it  to  this 
case. 

Abtici^  8.  Insurance  does  not  cover  as  a  matter  of  law 
the  risks  arising  from  the  rights  of  third  parties. 

Ahticle  4.  If  the  value  of  the  interest  insured  has  been 
previously  estimated  by  experts  agreed  upon  by  the  parties, 
the  insurer  cannot  object  to  this  estimate  except  in  case  of 
fraud. 

Article  5.  Insured  objects  can  be  abandoned  in  case  of 
shipwreck,  capture  as  prize,  seizure  by  order  of  a  Power 
non-navigability  from  the  fortune  of  the  sea,  only  when  the 
loss  or  deterioration  of  the  insured  objects  equals  three- 
quarters  of  their  value,  and  when  nothing  has  been  heard 
for  the  periods  fixed  in  Article  866  of  the  German  Code  of 
Commerce.  The  still  further  restriction  of  cases  of  abandon- 
ment is  reserved  for  the  particular  laws  of  each  State. 

Article  6.  In  case  of  sale  of  the  thing  insured,  the  in- 
surance runs  in  favor  of  the  new  owner,  when  he  has  been 
subrogated  to  the  rights  and  obligations  of  the  preceding 
owner  toward  the  insurers,  unless  there  is  a  clause  to  the 
contrary  in  the  policy. 


if  1 1 


n 


COMMUNICATION  OF  FOREIGN  LAWS ' 

fomeV!'^r**""°"  "Vy"""-  >«'°"''  """•  Pierantoni  a  committee  was 
toT.  ?,  h     It  Tr"  °'  ^'""''^''  ('«"^)  ^°'  ♦'"^  P"'P°''«=  ot  seeking  mean. 
o  be  submitted  to  governments  to  facHitatr  the  communication  of  foreimi 
laws  and  to  ensure  the  proof  of  such  laws  before  courts  ' 

thr-t^lu/T'T  »' »"'**5>''  (ISS'')  Mr.  Xorsa  presented  a  report  upon 
tl.e  methods  to  be  submitted  to  governments  to  facilitate  the  communicaUon 


'  Tableau  ginfral,  p.  19. 


'  Annaairt,  vol.  7,  p.  883. 


68      Retolutions  of  the  Institute  of  International  Lam 


I'fi 


of  forrign  Uwi; '  thli  report  was  •ccompanicd  by  •  Dnft  of  l*Ur*atio%al 
Agreemtnt  roniiiting  of  twrnty-two  artlclrt.'  The  mrctlnR  wai  unable 
to  lupport  thii  draft  In  Ha  entirety  and  directed  Mr.  Aaicr  to  draw  up 
•everal  propoaltioni,  which  were  adopUd  at  the  plenary  iCMion  of 
September  li,  1 88.1. 

Theie  propoaltioni  are  aa  follows:  * 


i 


Propositions  fob  an  Intebnational  Aoeeement,  foi  the 
Purpose  of  Establishing  a  Permanent   Intebna- 

TIONAI.  COMMITTFJ;,  TO  FACILITATE  THE  COMMUNICA- 
TION OF  Foreign  Laws  Actuaij-y  in  Force  to  the 
Governments  and  Citizens  of  Every  Country 

The  Institute  utters  the  following  vopuj:': 

1.  That  the  governments  agree  to  coniinunicate  to  each 
other  laws  which  are  now  in  force  and  those  which  may  be 
promulgated  in  the  future  in  the  respective  States,  in  accord- 
ance with  the  following  provisions. 

2.  That  among  the  laws  thus  to  be  conmiunicated  shall 
be  comprised: 

(a)  Codes,  laws  and  regulations  which  concern  civil 
and  commercial  law,  criminal  law,  civil  and  criminal  pro- 
cedure, including  those  concerning  bankruptcy  or  meeting 
of  creditors,  and  the  organization  of  the  judiciary. 

(b)  Laws  and  regulations  relating  to  domestic  adminis- 
trative and  public  law,  when  they  may  be  of  general  interest 
to  States  and  to  citizens  of  the  various  nations; 

(c)  Treaties,  conventions  and  international  agree- 
ments, or  provisions  contained  therein,  concerning  relations 
of  civil  law  or  economic  interest,  except  relations  of  a  purely 
political  character. 

(d)  Laws  and  regulations  proclaimed  in  accordance 
with  the  said  international  agreements,  in  whatever  form 
they  may  appear,  or  treaties  of  union  with  several  States,  i)r 
special  international  conventions  with  ol    of  them. 

The  conunittee  to  be  established  in  accordance  with  Sec- 
tion 3  shall  have  the  power  to  add  other  items  to  these. 
b.   That  a  permanent  international  committee,  composed 


'  Annuaire,  vol.  8,  p.  i?35. 


'  Ibid.. 


265. 


•  Ibid.,  p  271. 


Communication  of  Foreign  Latu 


60 


of  delegates  nantcd  by  the  governments,  shall  be  ..stablished 
for  the  purpose  of  receiving  the  laws,  etc.,  which  may  be 
communicated,  preserving  them  and  classifying  them  in 
systematic  order. 

4.  That  eucli  year  there  shall  be  drawn  up  in  French, 
under  the  direction  of  the  permanent  committee,  a  general 
table  of  all  the  laws,  etc.,  conununicated  by  the  various 
States,  following  the  classification  indicated  above/ 


if 


BLOCKADE  IN  THP:  ABSENCE  OF  A  STATE  OF 

WAR' 

On  September  II,  1883.  at  Bru«m-1«,  the  Inntitute,  on  the  motion  of 
Mr.  PercU,  decided  upon  the  creation  of  a  committee  entruated  with 
the  inveitigation  of  the  question  of  ^ '  »  'ight  of  blockade  in  lime  of  peace.* 

At  the  Heidelberg  meeting,  o  . .  rt  and  a  draft  of  retolutions  were 
submitted  by  Mr.  Perels,*  and  alsr  .  counter-report  by  Mr.  Geffcken,' 
who  concluded  by  condemning  the  very  principle  of  a  pacific  blockade. 
The  question  was  discussed  on  .September  7,  1887,  in  the  presence  of  His 
Royal  Highness,  the  Grand  Duke  of  Baden,  and  the  following  resolution 
was  adopted :  * 

DeC.ABATION   VOT^ID   BY  THE   INSTITUTE  ON   BLOCKADE  IN 

THE  Absence  of  a  State  of  War 

The  establishing  of  a  blockade  in  the  absence  of  a  state  of 
war  should  not  be  considered  as  permissible  under  the  law 
of  nations  except  under  the  following  conditions: 

1.  Ships  under  a  foreign  flag  shall  enter  freely  in  spite 
of  the  blockade. 

2.  Pacific  blockade  must  be  officially  declared  and  noti- 
fied, and  maintained  by  a  sufficient  force. 

3.  The  ships  of  the  blockaded  Power  which  do  not  re- 
spect such  a  blockade  may  be  sequestrated.  When  the 
blockade  is  over,  they  shall  be  restored  to  their  owners  to- 

'  For  subsequent  action  of  the  Institute  on  this  subject,  see  poit,  p.  70. 
•  Tableau  giniral,  p.  139. 


'  .-/Rfi"ai>c,  vol.  S,  p.  3i7. 
'  Ibid.,  vol.  9,  p.  976. 


'  Ibid.,  p.  iSe. 
'  Ibid.,  p.  300. 


70      ReaolutioM  of  the  Institute  of  International  Law 

gether  with  their  cargoes,  but  without  any  compensation 
whatsoever. 


COMMUNICATION  OF  FOREIGN  LAWS ' 

At  the  session  in  Heidelberg  (1887)  the  Institute  reversed  its  decision. 
After  formally  condemning  the  idea,  expressed  in  Section  8  of  these 
Propotitiont,'  of  an  international  committee  charged  with  collecting,  pre- 
serving and  classifying  systematically  foreign  laws,=  it  adopted,  at  the 
session  of  September  8,  1887,  the  following  text,  to  replace  that  which 
had  been  adopted  at  Brussels :  * 

The  Institute  utters  the  following  veetix: 

1.  That  the  governments  agree  to  communicate  to  each 
other  laws  which  are  in  force  and  those  which  may  be  pro- 
mulgated in  the  future  in  the  respective  States,  in  accordance 
with  the  following  provisions. 

2.  That  the  laws  thus  to  be  communicated  shall  com- 
prise principally: 

(a)  Codes,  laws  and  regulations  which  concern  civil 
and  commercial  law,  criminal  law,  civil  and  criminal  pro- 
cedure, including  those  concerning  bankruptcy  or  meeting 
of  creditors,  and  the  organization  of  the  judiciary; 

(6)  Laws  and  regulations  relating  to  domestic  admin- 
istrative and  public  law,  when  they  may  be  of  general  interest 
to  States  and  to  citizens  of  the  various  nations; 

(c)  Treaties,  conventions  and  international  agree- 
ments, or  provisions  contained  therein,  concerning  relations 
of  civil  law  or  economic  interest; 

(d)  Laws  and  regulations  proclaimed  in  compliance 
with  the  said  international  agreements,  in  whatever  form 
they  may  appear,  or  treaties  of  union  with  several  States, 
or  special  international  conventions  with  one  of  them. 

3.  That  in  each  State  these  various  documents  shall  be 
collected  in  a  central  depository,  accessible  to  the  public. 


>  Tableau  ginfral,  p.  91. 
•  Printed  antt,  p.  68. 


•  Anmtaire,  vol.  9,  p.  306. 
*lbi(i.,  p.  311. 


Intermtional  Regulations  Concerning  Prizes 


71 


INTERNATIONAL   REGULATIONS   CONCERN- 
ING PRIZES ' 

At  Brussels,  in  1885,  the  reporter  hting  prevented  from  «ff^„^ir.„  *i, 

session,  the  Institute  adjourne/the  discusfio7o7teVraft  .^""e'  Xt 
ing  session.'  *«»o»i.  w  uic  louow- 

This  discussion  was  continued  at  Heidelberg,  1887,  and  brounht  to  a 
happy  conclusion  on  September  8  of  the  said  vear  hv  th»  i  *^I-  r 
Articles  85  to  122  (the  last)  of  the  draft."         ^      '     ^  *''"  ""^"P*"""  "^ 

It  was  also  decided  that  the  regulaUons  adopted  should  be  com- 
municated to  all  governments  with  a  letter  expressing  the  °  J«  that  "Tn 
the  future,  the  reform  may  be  yet  more  complete  fnd  thatthe  nte," 
jSrilSri  """  ""^"^  ^"""^  '''  '""^  -'^  competenf  trTbunaT;;. 

11.— Organization  and  Procedure  of  the  Court  of  Prize' 
Aeticle  85.    The  organization  of  the  prize  courts  of 
hrst  instance  remains  a  matter  of  regulation  by  the  legisla- 
tion  of  each  State, 

Article  86.  If  an  amicable  adjustment  has  not  been 
reached,  the  prize  cases  go  directly  from  the  prize  court  of 
inquiry  of  the  captor  State  to  the  national  court  of  prize 
of  first  instance,  which,  after  having  examined  the  case 
summons  the  interested  parties,  viz.:  the  captor  State 
and  the  captured  persons,  who  are  both  represented  before 
the  tribunal  by  attorneys  in  fact,  who  also  sign  the  briefs 
presented  m  the  case.  The  tribunal  examines  the  powers  of 
attorney,  which  should  be  properly  executed. 

Article  87.  In  case  the  court  should  not  publish  an 
invitation  to  the  parties  to  appear  at  the  end  of  two  weeks 
alter  the  receipt  of  the  case,  the  latter  have  the  right  to  file  a 
complaint  with  the  international  superior  court  because  of 
uelay  m  proceeding. 

Article  88.    The  court  states : 

1.  Whether  the  seizure  was  legal  in  form  and  in  sub- 
stance; 

'  Tableau  ginfral,  p.  195. 
•  Annuairr,  vol.  8,  p.  16T. 
'  Ibid.,  vol.  9,  pp.  20J-9I7. 
'Ibid.,  p.  217. 

•/("•</.,  p.  236.     For  articles  1   to  84  see  ante.  pp.  4fi-<!2. 


72      Resolutions  of  the  Institute  of  International  Law 

2.  Whether  it  should  be  sustained  or  declared  illegal, 
that  is,  whether  it  is  necessary  to  adjudge  the  captor  State  to 
be  the  owner  of  the  property  seized,  or  whether  the  vessel  or 
merchandise  should  be  restored  to  the  captured  persons; 

8.  Whether  the  ground  on  which  the  seizure  was  made  is 
an  infraction  of,  or  in  accord  with,  international  law. 

Article  89.  The  court  in  case  of  necessity  causes  the 
court  of  inquiry  to  complete  the  finding  of  facts  and  ex- 
amines and  decides  the  case  even  in  the  absence  of  requests 
and  conclusions  from  the  parties. 

Article  90.  The  attorneys  in  fact,  after  having  de- 
posited a  bond  to  cover  the  costs  fixed  by  the  court,  are 
authorized  to  present  to  the  court  a  brief  of  the  motions  or 
claims,  within  a  period  of  four  weeks,  adding  thereto  the 
docTunents  on  which  the  case  is  based  and  enumerating  the 
evidence  upon  which  the  parties  depend. 

Article  91.  The  court  invites  the  attorneys  to  examine 
the  briefs  of  the  adverse  parties  and  to  reply  thereto  in 
writing  within  two  weeks.  The  court  and  the  attorneys  hav- 
ing examined  these  replies,  a  day  is  fixed  for  public  argu- 
ment. At  these  arguments  the  president  opens  the  session 
with  an  historical  statement  of  the  case.  The  parties  make 
their  replies  and  conclusions  and  the  discussion  of  the  several 
contentions  raised  takes  place  at  the  same  time. 

Article  92.  If  the  court  deems  it  necessary  to  produce 
testimony,  or  if  one  or  both  of  the  parties  propose  it  and  the 
court  consents  thereto,  the  latter  orders  the  testimony  to  be 
taken  within  a  period  of  two  weeks.  This  period  may  be 
lengthened  by  the  tribunal  because  of  distances.  After 
the  expiration  of  the  period  fixed  the  court  informs  the 
parties  in  writing  within  a  week  of  the  result  of  this  takinj,' 
of  testimony  and  fixes  a  new  time  for  argument,  where  the 
procedure  is  similar  to  that  above  outlined.  The  parties 
may  supply  in  their  oral  arguments  and  conclusions  new 
evidence  and  facts. 

Article  93.  Where  the  representative  of  the  captor 
State  has  presented  no  motion  or  the  captured  persons  have 
made  no  claim,  the  court  proceeds,  after  the  expiration  of 


Intematiomd  Regulations  Concerning  Prizes       78 

the  period  for  motions  or  claims,  to  decide  the  case  accord- 
ing to  the  status  of  the  procedure  at  that  time.  The  same 
is  true  where  the  parties,  or  one  of  them,  do  not  appear  at 
the  hearing  of  the  argimients,  all  the  periods  fixed  being 
final.    No  request  for  complete  restitution  will  be  permitted. 

Aeticle  94.  A  period  of  two  weeks  is  fixed  for  the  ren- 
dering of  judgment,  this  period  running  from  the  close  of 
the  arguments.  In  case  the  court  should  allow  this  period 
to  elapse  without  rendering  its  decision,  the  parties  have  the 
right  to  complain  of  the  delay  to  the  court  of  appeal. 

Aeticle  95.    The  judgment  states: 

1.  To  whom  the  vessel  and  the  cargo,  or  the  amount  re- 
ceived from  public  sale,  or  the  sum  paid  by  the  owner  if 
the  vesr  .  or  cargo  has  been  delivered  to  him,  should  be  sur- 
rendereu ; 

2.  What  damages  shall  be  given,  to  whom,  and  by 
whom,  in  case:  (a)  of  invalid  or  unlawful  stopping  o:  seiz- 
ure by  the  officers  of  war  vessels;  (6)  of  delay  in  procedure 
or  decision  of  the  case;  and  (c)  of  liberation  of  the  vessel 
and  cargo; 

8.  If  the  bonds  deposited  are  restored,  in  what  sum  resti- 
tution shall  be  made,  and  to  whom  it  should  be  made; 

4.  Which  of  the  two  parties  shall  bear  the  expenses 
caused  by  the  vessel,  the  cargo,  and  the  court  proceedings, 
if  there  is  ground  for  reimbursing  the  captured  persons  with 
the  expense  of  transportation  or  if  they  shall  lose  such  ex- 
pense because  they  have  violated  the  regulations; 

5.  A  decision  concerning  the  fate  of  the  crew  of  the 
vessel  captured,  in  case  the  court  of  inquiry  has  not  already 
set  them  at  liberty. 

Article  96.  The  judgment  shall  be  made  public  and  the 
attorneys  of  the  parties  shall  be  summoned  for  that  purpose. 
In  case  one  or  the  other  should  not  appear  on  the  day  fixed, 
the  court  shall  draw  up  a  proces-verhal  and  the  judgment 
shall  be  considered  to  have  been  made  public.  At  the  re- 
quest of  an  attorney,  the  court  delivers  copies  of  the  judg- 
ment published.  At  the  time  of  publication  notice  is  given 
of  the  provisions  relating  to  appeal. 


^tfi 


74      Reaolutioru  of  the  Institute  of  International  Law 

Article  97.  A  proces-verbal  is  drawn  up  covering  all 
the  arguments,  conclusions,  judgment  and  its  publication, 
and  such  proch-verbal  is  read  to  the  attorneys.  The  precis- 
verbal,  corrected  and  completed  if  necessary,  is  signed  by 
the  president  and  registrar. 

Abticle  98.  The  execution  of  the  judgment  is  under- 
taken by  the  court  of  inquiry  under  authority  of  the  judg- 
ment. 

Article  99.  The  judgment  may  be  executed  when  the 
attorney  of  none  of  the  parties  has  appealed  from  the  deci- 
sion of  the  court  of  prize  within  the  desired  period.  The 
judgment  which  has  been  appealed  from  cannot  be  executed 
without  giving  bond. 

12. — Organization  and  Procedure  of  the  International  Court 

of  Prize 

Article  100.  At  the  beginning  of  every  war  each  of 
the  belligerent  parties  constitutes  an  international  court  of 
appeal  in  prize  cases.  Each  of  these  tribunals  is  composed 
of  five  members  designated  as  follows: 

The  belligerent  State  shall  itself  name  the  president  and 
one  of  the  members.  It  shall  designate  also  three  neutral 
States,  each  of  which  shall  choose  one  of  the  three  other 
members. 

Article  101.  All  prize  cases  may,  upon  request  of  the 
parties  made  within  a  period  of  twenty  days,  be  referred  to 
the  international  court  of  appeal.  The  presentation  and 
justification  of  the  appeal  take  place  at  the  same  time  and 
the  periods  run  from  the  day  the  decision  is  pronounced  by 
the  court,  not  including  that  day. 

Article  102.  The  appeal  is  addressed  to  the  national 
court  of  prize,  which  notifies  the  adverse  party,  who  de- 
mands from  the  appellant  a  bond  for  the  payment  of  costs. 

Ahticij;  103.  The  matter  presented  in  justification  of 
the  appeal  states,  and  gives  the  reasons  for,  the  different 
objections  to  the  points  determined  in  the  judgment  of  the 
national  court  of  prize. 


International  Regulations  Concerning  Prizes        75 

Article  104.  The  national  court  of  prize,  in  com- 
municating the  note  of  appeal  to  the  adverse  party,  invites 
it  to  present  a  reply  within  two  weeks.  At  the  end  of  this 
period  the  said  court  sends  the  documents  and  note  of  appeal 
with  the  reply  to  the  international  court  of  appeal.  The 
national  court  may  grant  an  extension  of  time  for  good 
cause. 

Ahticle  105.  The  procedure  before  the  international 
court  of  appeal  is,  in  general,  tliat  of  the  court  of  prize. 

Ahticle  106.  The  judgment  or  decision  on  appeal  shall 
contam  a  statement  of  the  grounds  therefor,  and  shall  be 
rendered  on  the  basis  of  a  written  report  of  the  president, 
and  after  consideration  of  the  new  proofs  and  facts  which 
may  have  been  produced  during  the  hearing  on  appeal. 

Article  107.  Neither  appeal  for  reversal  of  judgment 
nor  request  for  complete  relief  nor  requests  and  observa- 
tions of  consuls  and  agents  of  the  States,  will  be  received 
with  regard  to  the  procedure  and  decision. 

Article  108.  The  judgment  on  appeal  shall  be  pro- 
nounced in  the  presence  of  the  attorneys  of  the  parties  desig- 
nated for  that  purpose,  and  at  their  request  a  copy  of  the 
decision  shall  be  given  to  them.  The  decision  shall  also  be 
published  in  one  or  more  newspapers. 

Article  109.  After  the  publication  the  national  court 
of  prize  shall  be  called  upon  for  the  execution  of  the 
judgment. 


IS.— Substantive  Law  Concerning  the  Decision  of  Prize 
Cases  and  Cases  of  Recapture 

A. — Prize  Cases 

Article  lio.  Xo  merchant  vessel,  or  any  cargo  be- 
lonrng  to  an  individual,  enemy  or  neutral,  no  shipwrecked 
vessel,  or  vessel  which  has  run  aground  or  been  abandoned, 
or  any  fishing  vessel,  may  be  seized  as  prize  and  condemned 
except  by  virtue  of  a  decision  of  courts  of  prize  and  because 
ot  acts  forbidden  by  the  present  regulations 


'I 


76      Resolutions  of  the  Institute  of  International  Law 

Article  111.  Prize  courts  are  obliged  to  decide  in  ac- 
cordance with  the  rules  of  international  law. 

Ahticle  112.  The  prize  courts  cannot  condemn  enemy 
or  neutral  prizes  except  on  the  following  grounds: 

1.  Prohibited  transportation  in  time  of  war; 

2.  Violation  of  blockade; 

8.   Resistance  to  stopping,  visit  and  search,  or  seizure; 

4.  Participation  in  the  hostilities  of  the  belligerents  by 
private  vessels. 

Article  113.  In  order  that  a  vessel  may  be  condemned 
because  of  being  engaged  in  transportation  prohibited  in 
time  of  war,  it  is  necessary: 

1.  That  the  transportation  be  to  an  enemy  destination; 

2.  That  the  object  transported  be  itself  prohibited,  that 
is,  contraband,  or  conditional  contraband,  of  war; 

8.  That  the  contraband  be  seized  in  the  very  act  of  being 
transported,  or  that  it  be  found  on  board  a  vessel  when  the 
latter  is  stopped. 

Article  114.  In  order  that  a  vessel  may  be  condemned 
on  the  ground  that  it  has  violated  a  blockade,  it  is  necessary: 

1.  That  the  blockade  be  published  and  effective; 

2.  That  it  has  been  brought  to  the  attention  of  the 
accused  vessel,  and  that  this  vessel  has  attempted  to  violate 
the  blockade  according  to  the  provisions  of  the  present  regu- 
lations (Articles  43  and  44). 

There  is  no  ground  for  condemnation  if  a  vessel  has 
passed  through  the  line  of  blockade,  or  into  a  blockaded  sea, 
by  accident,  such  as  a  tempest,  or  in  error;  but  these  facts 
must  be  proved  by  the  vessel  setting  them  up. 

Articij:  115.  Resistance  of  a  merchant  vessel  to  stop- 
ping, visit,  search  or  seizure,  should  be  proved  in  fact  and 
manifested  by  acts;  a  simple  protest  of  the  resisting  vessel 
cannot  be  sufficient  to  condemn  it. 

Article  116.  In  case  where  a  private  vessel  partici- 
pates in  the  hostilities  of  belligerents,  it  is  necessary  that  the 
participation  be  proved  and  recognized  as  such. 

Article  117.  Official  correspondence  and  contraband 
transported  to  an  enemy  destination  shall  be  confiscated; 


International  Regulaticma  Concerning  Prizes        77 

troops  in  course  of  transportation  to  the  enemy  shall  be  made 
prisoners.  The  vessel  transporting  them  shall  not  be  con- 
demned unless: 

1.  It  offers  resistance; 

2.  It  transports  enemy  troops; 

8.  If  the  cargo  in  course  of  transportation  to  an  enemy 
destination  is  composed  principally  of  provisions  for  the 
war  vessels  or  troops  of  the  enemy. 

Article  118.  The  vessel  shall  be  condemned  with  its 
cargo: 

1.  In  case  of  violation  of  blockade  (Article  114) ; 

2.  In  case  of  resistance  (Articles  112  and  115) ; 

8.  In  case  of  participation  in  the  hostilities  of  bellig- 
erents (Article  116). 

B.— Cases  of  Recaptube 

Abticle  119.  Any  private  vessel  taken  in  time  of  war 
by  a  war  vessel  of  a  belligerent  may  be  subject  to  recapture 
by  a  war  vessel  of  the  other  belligerent,  whatever  may  be 
the  length  of  time  during  which  it  has  remained  in  the  power 
of  the  enemy  before  being  retaken. 

Akticle  120.  Any  recapture  should  be  recognized  as 
such  and  passed  upon  by  the  national  court  of  prize. 

Aeticle  121.  The  person  recapturing  the  vessel  is 
bound  to  restore  it  to  the  original  lawful  owner,  unless  the 
latter  has  used  it  for  a  purpose  forbidden  by  the  interna- 
tional regulations. 

Aeticle  122.  No  bounty  shall  be  given  for  recaptures 
except  in  case  the  vessel  and  cargo  are  adjudged  to  belong 
to  the  original  owner,  who  shall  not  himself  pav  more  than 
the  expenses  caused  by  the  recapture  and  audited  by  the 
national  court  of  prize. 


V  ■ 


78      Resolutions  of  the  Institute  of  International  Law 
NAVIGATION  OF  INTERNATIONAL  RIVERS' 

This  gubject  was  placed  upon  the  program  of  the  Institute  between 
the  sessions  of  Munich  and  Brussels »  at  the  suggestion  of  Mr.  Martens 
and  on  his  authority. 

At  the  session  of  Brussels  (meeting  of  September  11,  1885)  the 
author  of  the  proposition,  who  had  become  the  reporter  of  the  committee 
of  investigation,  presented  a  report  setting  forth  his  ideas. '  Mr.  Martens 
then  worked  out  a  complete  draft  of  regulations,  which  was  transmitted 
to  the  members  of  the  Institute  in  the  Bureau's  circular  of  May,  1887,* 
and  gave  rise  to  important  communications  from  Messrs.  Engelhardt  and 
Kamarovsky.'  Thin  draft,  which  was  discussed  at  the  session  of  Sep- 
tember 9,  1887,  at  Heidelberg,  was  adopted  at  that  meeting  with  some 
slight  modifications,  in  the  following  form:' 

Deaft  of  International  Regulations  foe  the  Naviga- 
tion OF  RiVEBS 

General  Provisions 

Article  1.  The  States  bordering  a  navigable  river  are 
required  to  regulate  by  commun  agreement  and  in  the  gen- 
eral interest  all  matters  relating  to  the  navigation  of  that 
river. 

Article  2.  The  navigable  tributaries  of  international 
rivers  are  subject  in  all  respects  to  the  same  regulation  as 
the  rivers  to  which  they  are  tributary,  in  accordance  with 
the  agreement  between  the  States  bordering  the  river,  and 
with  the  present  regulations. 

Article  3.  Navigation  of  the  entire  length  of  interna- 
tional rivers,  from  the  point  at  which  they  l)ecome  navigable 
to  the  sea,  is  absolutely  free  and  cannot  be  denied  to  any 
flag  so  far  as  commerce  is  concerned. 

The  boundary  of  the  States  separated  by  the  river  is 
marked  by  the  thalweg,  that  is,  the  median  line  of  the 
channel. 

Article  4.   The  subjects  and  flags  of  all  nations  are 


'  Tableau  giniral,  p.  148. 

'  1883,  1885. 

•  Annuaire,  vol.  8,  pp.  272-289. 

'  Sec  Kevun  de  druil  iaterualiouat,  vol.  xlx,  I'p.    ltl-174. 


'Annuaire,  vol.  9,  pp.  156  et  »«1- 
Ibid.,  p.  18^. 


Navigation  of  International  Rivera  79 

treated  upon  an  absolute  equality  in  all  matters.  No  dis- 
tinction shall  be  made  between  the  subjects  of  the  riparian 
states  and  those  of  non-riparian  States. 

Ahticij:  5.  The  tolls  for  navigation  collected  aloni?  in- 
ternational rivers  shall  be  exclusively  for  the  expenses  of 
improving  these  rivers  and  for  the  maintenance  of  naviija- 
tion  in  general. 

Ahticle  6.  In  time  of  war  navigation  upon  interna- 
tional rivers  IS  free  for  the  flags  of  neutral  nations,  except 
as  to  the  observation  of  restrictions  imposed  by  the  force  of 
circumstances. 

Abticle  7.  All  works  and  structures  erected  in  the  in- 
terest of  navigation,  especially  offices  for  the  collection  of 
tolls  and  their  funds,  as  well  as  the  personnel  permanently 
attached  to  these  establishments,  are  placed  under  the  guar- 
anty of  permanent  neutrality  and  consequently  shall  be  pro- 
tected and  respected  by  the  belligerent  States. 

Special  Phovisions 

Ahticle  8.  All  sailing  and  steam  vessels,  without  any 
distinction  because  of  nationality,  are  authorized  to  trans- 
port passengers  and  merchandise,  or  to  tow  vessels  between 
all  ports  situated  aiong  the  international  rivers. 

Foreign  vessels,  whether  sea-going  or  for  river  naviga- 
tion, shall  not  be  admitted  to  regular  coastwise  trade,  that 
IS,  to  exclusive  and  continuous  traffic  between  the  ports  of 
the  same  State  located  on  the  river,  except  by  special  conces- 
sion of  that  State  ^     -^    r 

Article  9.  The  vessels  and  merchandise  in  transit  on 
the  international  rivers  are  not  subject  to  any  tax  in  transit, 
whatever  may  be  their  origin  or  destination. 

Article  10.  Navigation  of  international  rivei.  is  free 
irom  charges  incident  to  merely  calling  at  a  port,  port  dues, 
warehouse  dues,  break-bulk  charges  or  charges  because  a 
vessel  IS  forced  to  lie  over;  no  maritime  or  river  toll  may  be 
collected.  ^ 

Article  11.    Taxes  or  tolls  having  the  character  of  pay- 


80      Reaolutions  of  the  Irutitute  of  International  Law 


I     i' 


ment  for  the  actual  use  of  port  structures,  such  as  cranes, 
scales,  quays  and  storehouses,  may  be  collected. 

Abticle  12.  Customs  duties,  taxes  on  monopolies  or 
consumption  collected  by  the  riparian  States  cannot  in  any 
manner  hinder  free  navigation. 

Article  18.  Port  taxes  for  the  actual  use  of  cranes, 
scales,  etc.,  as  well  as  pilot  and  lighthouse  dues,  maintenance 
and  establishment  of  beacons  and  buoys,  intended  to  cover 
the  technical  and  administrative  costs  incurred  in  the  interest 
of  navigation,  are  fixed  in  the  tariffs  pubUshed  officially  in 
all  the  ports  along  the  international  rivers. 

Article  14.  The  above-mentioned  tariffs  shall  be  drawn 
up  by  mixed  commissions  from  the  States  bordering  the 
rivers. 

Article  15.  The  tariffs  shall  not  provide  for  any  dif- 
ferential treatment. 

Article  16.  The  tariffs  of  taxes  mentioned  in  Article 
18  shall  be  based  upon  the  cost  of  construction  and  mainte- 
nance of  the  local  establishments  and  according  to  the  ton- 
nage of  the  vessels  indicated  by  the  ship's  papers. 

Article  17.  The  riparian  States  shall  not  have  the 
power  to  collect  customs  duties  on  merchandise  transported 
along  the  international  rivers  unless  they  are  to  be  intro- 
duced into  the  territory  of  these  States. 

Article  18.  Vessels  can  discharge  their  cargoes  in  whole 
or  in  part  only  at  ports  and  other  points  on  the  river  where 
there  are  customs  houses,  except  in  case  of  force  majeure. 

Article  19.  Vessels  en  voyage  and  provided  with  pa- 
pers in  accordance  with  regulations  cannot  be  arrested  under 
any  pretext  by  the  customs  authorities  of  the  riparian  Stales, 
if  the  two  banks  of  the  river  belong  to  different  States. 

Articu:  20.  Vessels  which  enter  that  part  of  an  interna- 
tional river  where  both  banks  belong  to  a  single  State  are 
obliged  to  pay  the  customs  duties  charged  by  the  local  tariff 
on  merchandise  imported  into  the  territory  of  that  State. 

Merchandise  in  transit  is  subject  only  to  sealing  and 
special  examination  by  the  customs  authorities. 

Article  21.    The  riparian   States  shall  agree  aiaong 


Navigation  of  International  Riven  8i 

themselves  upon  the  police  re^ijlntions  intended  to  govern 
the  use  of  the  river  in  the  special  interest  of  public  order  and 
security. 

Abticle  22.  Special  admiralty  courts  or  those  of  com- 
mon law  existmg  in  the  riparian  States  shall  have  juris- 
diction, on  appeal,  of  penalties  for  infraction  of  the  police 
regulations  established  on  the  principle  of  absolute  equality 
of  treatment  for  all  vessels,  without  distinction  on  the  ground 
of  nationality. 

Ahticle  28.  Quarantine  offices  shall  be  established  by 
the  riparian  States  at  the  mouths  of  international  rivers- 
supervision  of  vessels  -s  exercised  both  when  they  enter  and 
when  they  leave. 

Supervision  of  the  sanitation  of  the  vessels  in  the  course 
of  the  river  navigation  shall  be  exercised  according  to 
the  special  provisions  established  by  the  river  com- 
missions. 

Article  24.  The  necessary  work  to  ensure  the  naviga- 
bility of  international  rivers  shall  be  undertaken  either  di- 
rectly by  the  States,  or  by  the  river  commissions. 

ARTICJ.E  25.  Each  riparian  State  is  free  to  take  such 
measures  as  it  deems  necessary  to  maintain  and  improve,  at 
Its  own  expense,  the  navigability  of  those  parts  of  the  inter- 
im'  >nal  rivers  subject  to  its  sovereignty. 

Articij:  26.  In  all  cases,  it  is  forbidden  to  undertake 
works  wh.ch  may  change  the  disposition  of  the  common 
waters  or  hinder  navigation,  and  against  wlJch  other  riparian 
States  have  protested. 

iVRTicLE  27.  The  authorities  charged  with  the  naviga- 
tion of  international  rivers  are: 

1.  The  authorities  of  the  States  bordering  the  rivers; 

2.  The  river  commission,  composed  of  deleijates  of  the 
sovereign  States. 

Article  28.  Each  riparian  State  preserves  its  sovereign 
rights  over  such  parts  of  the  international  rivers  as  are  sub- 
ject to  its  sovereignty,  within  the  limits  established  by  the 
provisions  of  these  regulations  and  of  treaties  or  conventions. 

Article  29.    The  river  commission  arrives  at  its  deci- 


82      ReiolutioM  of  the  IfuUtute  of  International  Law 

sions  by  majority  vote.  In  case  of  equal  division,  the  presi- 
dent casts  the  deciding  vote. 

However,  a  vote  does  not  bind  the  States  comprising  the 
minority,  if  the  delegates  of  these  States  have  formally 
opposed  the  execution  of  the  measure  in  advance. 

Abticle  80.  The  river  commission  is  a  permanent 
authority  over  international  rivers;  it  has  the  following 

powers : 

1.  It  designs  and  causes  to  be  executed  the  work  neces- 
sary for  the  improvement  and  development  of  the  .iga- 
bility  of  the  rivers;  «      , 

2.  It  determines  and  puts  into  operation  the  tariffs  of 
navigation  charges  and  other  charges  mentioned  in  Articles 

18-18; 

8.    It  draws  up  the  regulations  of  the  river  police; 

4,  It  supervises  the  maintenance  in  good  condition  of 
the  works  and  the  strict  observation  of  the  provisions  of  these 
international  regulations; 

5.  Xt  names  the  inspector  in  chief  of  navigation  upon 

the  international  river. 

Akticij:  81.  The  inspector  in  chief  acts  as  an  organ  of 
the  river  conmiission  and  under  the  direction  thereof.  His 
authority  is  exercised  without  distinction  as  to  flag. 

Article  82.  The  inspector  in  chief  alt>:iidt  o  the 
execution  of  these  international  regulations  as  well  as 
of  the  special  river  regulations,  and  to  the  policing  of 
navigation. 

Abticle  83.  This  officer  has  the  right,  in  the  exercise  of 
his  functions,  to  require  directly  the  assistance  of  the  mili- 
tary authorities  or  the  assistance  of  the  local  authorities 
along  the  river. 

Article  84.  The  local  inspectors  and  employees  of  toll- 
collecting  offices  and  quarantine  are  named  by  each  State 
along  the  river;  but  they  exercise  their  powers  under  the 
orders  of  the  inspector  in  chief,  and  have,  like  him,  an  inter- 
national character. 

Article  35.  Two  or  more  riparian  States  may  agree  in 
the  noiniuation  of  the  same  delegate  to  the  river  conmiis- 


Navigation  of  International  Rivert  88 

■ion  and  the  nomination  of  the  same  local  inspector,  or  em- 
ployees of  toll-collecting  offices,  employees  of  quarantine 
court  judjfes,  etc.  ' 

AiTicu:  86.  The  inspector  in  chief  in  the  first  insUnce 
assesses  the  fines  mcurred  because  of  violation  of  the  police 
and  navigation  regulations. 

Ahticle  87.    Appeal  from  his  decisions  may  be  brought 
either  before  nn  admiralty  court  established  for  that  purpose 
or  a  local  court  especially  designated  by  each  riparian  State.' 
or  before  the  river  commission. 

Abticij:  88.  Each  riparian  State  names  engineers  who 
are  commissioned  to  take  care  of  the  maintenance  and  im- 
provement  of  that  section  of  the  river  subject  to  its  sov- 
ereignty. 

Ahticu:  89  The  Powers  shall  fix  by  common  agree- 
ment the  method  of  measuring  and  gauging  to  determine  the 
capacity  of  river  and  sea-going  ships,  to  be  of  binding  force 
upon  all  nations. 

Article  40.  In  case  of  war  between  the  riparian  States, 
the  property  afloat  upon  an  international  river  shall,  with- 
out distinction  between  neutral  and  enemy  property  be 
treated  in  accordance  with  the  rules  governing  the  protection 
of  enemy  property  on  land  in  case  of  war. 


MARINE   COLLISIONS' 

.„J^f  «l""«op  of  conflict  of  laws  and  uniformity  of  legislation  on  the 

by  authority  of  a  decision  reached  at  Heidelberg  in  the  session  of 
September  7.  1887.  The  authors  of  the  proposition%Iessrs  L^on-Caen 
and  Sacerdoti,  were  at  the  same  time  named  reporters,  the  former  for 
the  conflict  of  laws  and  the  latter  for  uniform  legislation. 

1  he  first  report  by  Mr.  Lyon-Caen,  explaining  and  justifying  this 
proposition,  was  read  at  HeidelSerg.'  A  second  feport  by  Mr  Lyon! 
nfln  ?r       u^  "  ^l"^^  "^  international  regulations  covering  conflicU 

»„J  /"A  /"•'J'^'l  °^  """'"^  collisions,  and  on  the  other  hand  a  report 
«nd  a  draft  of  a  uniform  law  covering  marine  collisions  presented  by  Mr 
.^■.ccrdoti,  were  communicated  to  the  Institute  in  anticipation  of  the  session 


'  Tabltav  giniral,  p.  90. 


*  Annuaire,  vol.  9,  pp.  1S6  #(  t0q. 


84      Resolutions  of  the  Institute  of  International  Law 

of  Lausanne.'  A  learned  discussion  of  the  two  drafts  took  place  in  the  two 
plenary  sessions  of  September  4,  1888,  and  the  InsUtute  adopted  them  in 
the  foUowing  form: 

Draft  of  Unifoem  Law  foe  Maeine  Collisions  ' 

Aeticle  1.  If  the  collision  was  caused  by  a  mistake  all 
the  damages  are  borne  by  the  vessel  on  which  the  mistake 
occurred. 

Aeticle  2.  If  mistake  was  made  on  both  vessels,  no 
indemnity  can  be  claimed  for  the  damage  caused  to  one  of 
the  vessels,  or  to  both,  imless  it  be  shown  by  the  parties 
interested  that  the  principal  cause  of  the  disaster  should  be 
charged  more  especially  to  one  of  the  vessels;  and  in  that 
case,  the  courts  shall  decide  to  what  extent  damages  should 
be  assessed  against  one  in  favor  of  the  other. 

In  all  cases  where  the  cause  is  a  mutual  mistake,  the  two 
vessels  are  jointly  responsible  for  the  damage  suffered  by 
the  cargo  and  persons.  The  vessel  which  has  to  pay  the 
entire  amount  of  the  damage  shall  have  the  right  to  have 
recourse  against  the  other  for  reimbursement  of  one-half  of 
the  sum  advanced.  When  the  tribunals,  according  to  the 
proof  offered,  shall  have  fixed  other  bases  for  contribution 
to  the  amount  of  damages,  the  recotu-se  shall  be  in  accord- 
ance with  the  rules  set  up  by  these  courts. 

Article  8.  When  the  vessel  is  under  the  direction  of 
a  harbor  pilot  as  required  by  law  and  the  members  of  the 
crew  have  fulfilled  the  obligations  falling  upon  tliem,  the 
vessel  is  not  liable  for  the  damage  resulting  from  a  collision 
caused  by  the  mistake  of  the  pilot. 

Article  4.  If  the  collision  resulted  in  the  death  or  in- 
jury of  human  beings,  the  damages  allowed  on  account  of 
such  death  or  injury  are  deducted  first,  as  a  matter  of  prefer- 
ence, from  the  amount  recovered. 

Article  5.  All  suits  for  damages  arising  from  collisions 
are  barred  unless  suit  is  brought  within  a  year  after  the 
collision  and  within  a  month  after  the  interested  parties 
learn  of  the  event. 


'^nnMa»>#.  vol.  10,  pp.  105  et  t$q. 


•  Ibid.,  pp.  150  -'  fq. 


Marine  Collisions 


85 


ARTICLE  6.  Suit  may  be  brought  by  the  captain  for  the 
account  of  all  interested  parties. 

Article  7.  The  vessel  causing  the  collision  may  be 
seized  in  any  port,  even  at  r>  port  where  it  may  have  put  in 
for  any  urgent  reason  .'luu,^  ti.e  entire  time  suit  is  pending 
and  until  the  judgme;  t  rendtrctJ  aj .  .nst  it  can  be  executed, 
unless  it  furnishes  a  sv  tfii  cnt  hornl   o  be  fixed  by  the  court. 

Article  8.  The  fci^o  ■inc'  siiali  have  jurisdiction  of  the 
suit  for  damages:  the  judge  of  the  domicile  of  the  defendant, 
the  judge  of  the  port  nearest  the  scene  of  the  disaster,  the 
judge  of  the  port  of  destination  of  the  vessel  causing  the 
collision,  the  judge  of  the  port  where  the  latter  vessel  may 
first  call,  the  judge  of  the  place  where  the  vessel  may  be 
seized. 


Draft  of  International  Regulations  Concerning  Con- 
flict OF  Laws  on  the  Subject  of  AIarine  Collisions 

Article  l.  In  case  of  a  collision  on  the  interior  waters 
of  a  country  between  vessels  whether  of  the  same  nation- 
ality or  of  different  nationalities,  the  law  of  that  country 
shall  be  applied  in  determining  which  shall  pay  the  damages 
caused  to  the  vessels,  persons  and  cargoes,  within  what 
periods  claims  should  be  presented,  what  formalities  should 
be  obser\'ed  by  the  interested  parties  for  the  preservation  of 
their  rights  and  which  are  the  competent  tribunals  to  take 
jurisdiction  thereof. 

The  above  is  likewise  applicable  when  the  collision  occurs 
in  territorial  waters. 

Article  2.  In  the  case  of  collision  on  the  high  seas  be- 
tween vessels  of  the  same  nntionalitif,  the  law  of  the  flag 
of  the  vessels  shall  be  applied  in  the  case  of  all  questions 
arising  out  of  the  collision. 

If  the  collision  occurred  on  the  high  seas  between  vessels 
of  different  nationalities,  the  law  of' the  flag  of  each  vessel 
shall  determine  which  shall  pay  the  damages.  However,  the 
claimant  cannot  make  a  demand  which  would  not  be  sup- 
ported by  the  law  of  his  flag. 


1  r 


86      Resolutiom  of  the  Institute  of  International  Law 

Claims  should  be  presented  within  the  periods  prescribed 
by  the  law  of  the  flag  of  the  claimant  and  after  the  fulfil- 
ment of  the  formalities  required  by  it.  Claims  may  be 
brought  before  a  competent  tribunal  either  in  accordance 
with  the  law  of  the  flag  of  the  claunant,  or  of  the  flag  of 
the  defendant. 


OCCUPATION  OF  TERRITORIES ' 


At  the  suggestion  of  Mr.  von  Martitz,  made  at  the  session  in  Brussels, 
September  12,  1883,  the  Institute  placed  upon  its  program  the  followinn 
topic:  "Examination  of  the  theory  of  the  Conference  of  Berlin  con- 
cerning the  occupation  of  territories."'  At  Heidelberg,  in  1887,  the 
Institute  contented  itself  with  noting  a  report,  followed  by  conclusions, 
submitted  by  Mr.  von  Martitz.* 

In  spite  of  the  absence  of  Mr.  von  Martitz,  the  meeting  at  Lausanne. 
1888,  did  not  think  it  could  longer  delay  the  examination  of  the  conclu- 
sions proposed  by  him.  But  the  Bureau  had  also  communicated  at  the 
session  of  Heidelberg  a  "  Draft  of  international  declaration  having  in 
view  the  determination  of  the  rules  to  be  followed  in  the  occupation  of 
territories,"  of  which  the  author  was  Mr.  Engelhardt.  After  having 
noted  the  written  observations  presented  in  the  name  of  Mr.  Westlake, 
and  discussed  and  rejected  Articles  1  and  2  of  the  conclusions  of  Mr.  von 
Martitz,  the  meeting  at  I.ausannr  took  as  the  basis  of  its  final  delibera- 
tions the  draft  of  Mr.  Engelhardt. 

Conclusions,  the  text  of  which  follows,  were  adopted  in  the  plenary 
session  of  September  7,  1888.* 

It  should  be  noted  here,  incidentally,  that  certain  articles  in  Mr. 
Engelhardt's  draft,  although  not  comprised  in  the  text  adopted,  were 
formally  reserved  to  be  the  subject  of  special  study.  A  new  committer 
(the  sixth)  was  formed  to  deal  with  the  question  of  the  slave  trade  and  the 
supervision  of  slave  ships,  to  which  these  articles  related.  For  the  action 
taken  by  the  Institute  upon  this  special  question,  see  the  title  "  Maritime 
slave  trade."  * 

Deaft  of  Intebnational  Declaration  Regarding  Occu- 
pation OF  Territories' 

Article  1.  Occupation  of  territory  by  sovereign  ripht 
cannot  be  recognized  as  effective  unless  it  complies  with  tlie 
following  conditions: 


'  Tablfau  ginfral,  p.  144. 

•  Anntiaire,  vol.  8,  p.  346. 

•  Ibid.,  vol,  Oi  pp.  244  et  ttq. 


*  Ibid.,  vol.  10,  pp.  176  et  teq. 
'Poit,  p.  93. 

•  Annmirt,  vol.  10,  p.  201. 


3 


Occupation  of  Territories  87 

(a)  Taking  tiossession  in  the  government's  name  of  a 
territory  within  certain  limits; 

(b)  Official  notification  of  taking  possession. 
Taking  possession  is  accomplished  by  the  establishment 

of  a  responsible  local  power,  provided  with  sufficient  means 
to  maintain  order  and  assure  the  regular  exercise  of  its 
authority  withm  the  limits  of  the  occupied  territory  These 
means  may  be  taken  over  from  the  institutions  existing 
within  the  occupied  territory. 

Notification  of  taking  possession  is  given,  either  by  pub- 
lication in  the  form  which  is  customary  in  each  State  for  the 
notification  of  official  acts,  or  through  the  diplomatic  cl.an- 
nel.  It  should  contain  an  approximate  statement  of  the 
limits  of  the  occupied  territory. 

Article  2.  The  rules  set  forth  in  the  above  article  are 
applicable  m  the  case  where  a  Power,  without  assuming  the 
entire  sovereignty  over  a  territory,  and  while  maintaining, 
with  or  without  restrictions,  the  local  administrative  auton- 
omy, places  the  said  territory  under  its  protection  (oro- 
tectorat).  *^  ^^ 

Article  3.  If  taking  possession  gives  rise  to  claims 
hased  upon  prior  titles,  and  if  the  ordinary  diplomatic  pro- 
cedure cannot  bring  about  an  agreement  between  the  in- 
terested parties,  the  latter  may  resort  either  to  good  offices, 
mediation,  or  the  arbitration  of  one  or  more  third  Powers. 

Article  4.  Wars  of  extermination  against  the  native 
tribes,  all  useless  hardships,  all  torture,  even  by  way  of  re- 
prisal, are  forbidden. 

Article  5.  In  the  territories  referred  to  by  the  present 
declaration  the  authorities  shall  respect,  or  cause  to  be  re- 
spected, all  rights,  especially  that  of  private  property,  both 
domestic  and  foreign,  individual  and  collective. 

Article  6.  The  said  authorities  are  bound  to  care  for 
the  preservation  of  the  native  populations,  their  education 
and  the  improvement  of  their  moral  and  material  well-being. 

They  shall  favor  and  protect,  without  distinction  because 
of  nationality,  all  the  private  institutions  and  enterprises 
created  and  organized  for  the  above  purposes,  provided  that 


m 


or 


88      ResolutioTU  of  the  Institute  of  International  Law 

the  political  interests  of  the  occupying  or  protecting  ^ 
shall  not  be  compromised  or  threatened  by  the  actio 
tendencies  of  these  institutions  and  enterprises. 

ARTICLE  7.  Freedom  of  conscience  is  guaranteed  to  the 
natives  as  it  is  to  nationals  and  foreigners. 

Freedom  of  worship  shall  not  be  restricted  or  hindered 
in  any  way. 

However,  practices  contrary  to  the  laws  of  morality  and 
humanity  shall  be  forbidden. 

Article  8.  The  authorities  shall  provide  for  the  aboli- 
tion of  slavery. 

Purchase  or  employment  of  slaves  for  domestic  service 
by  others  than  natives  shall  be  immediately  forbidden. 

Article  9.  Slave  trade  shall  be  forbidden  within  all  of 
the  territories  covered  by  the  present  declaration. 

Markets  for  the  sale  "of  slaves  shall  not  exist  within  these 
territories,  nor  may  slaves  be  transported  over  these  terri- 
tories for  purposes  of  sale;  and  the  most  rigorous  measures 
shall  be  taken  against  those  who  conduct,  or  are  interested 
in,  this  traffic. 

The  introduction  of,  and  domestic  traffic  in,  pillories  and 
other  instruments  of  punishment  used  by  slave-owners  shall 
be  stopped. 

Article  10.  The  sale  of  strong  drinks  shall  be  regulated 
and  controlled  so  as  to  save  the  native  populations  from 
the  evils  resulting  from  the  abuse  thereof. 


ADMISSION  AND  EXPULSION  OF  ALIENS ' 

In  1885,  Mr.  Brusa  had  called  the  attention  of  the  committee  on 
penal  law  to  the  advantage  of  investigating  the  question  of  the  expulsion 
of  aliens  at  the  same  time  as  that  of  extraditio.  The  Institute,  sharing 
his  view,  appointed,  at  its  Brussels  meeting,  a  new  committee  for  the 
investigation  of  this  second  question.' 

Mr.  von  Martitz  was  appointed  its  reporter;  but  reasons  of  expediency 
obliged  the  Institute  to  defer  the  discussion  of  the  subject  for  some  time.* 


'  TnhUau.  gfnfral,  p.  133. 

■  Annxtairv,  vol.  8,  p.  KiC. 


'  Ibid.,  p.  347. 

•  Ih>4.,  vol.  !),  pp.  S.'l-ai,  301. 


Admiarion  and  Expulsion  of  Aliens  89 

At  the  Lausanne  meeting  (1888),  the  reporter,  being  prevented  by  other 
work,  the  secretary  general,  Mr.  Rolin-Jaequemyns,  under  Article  18  of 
the  constitution,  presented  a  report  in  his  stead,  followed  by  conclusions 
which,  with  some  remarks  of  Mr.  von  Martitz,  were  referred  for  immediate 
investigation  to  a  committee  presided  over  by  Mr.  Rivier.  The  committee 
drew  up  a  Preliminary  Draft  Declaration,  which,  after  consideration  in 
plenary  session  on  September  8,  1888,  was  adopted  as  follows,'  with 
postponement  to  another  meeting  of  the  consideration  of  special  rules  for 
ordinary  cases  of  expulsion. 


Dhaft  Intehnational  Declahatiov  on  the  Right  of 
Expelling  Aliens  ' 

The  Institute  of  International  Law, 

Considering  that  the  expulsion  as  well  as  the  admission 
of  aliens  is  a  question  of  policy  which  no  State  may  renounce, 
but  which,  according  to  circumstances,  is  sometimes  forgot- 
ten and  at  other  times  suddenly  demands  attention; 

Considering  that  it  may  be  well  to  formulate  in  a  general 
way  some  stable  principles  which,  while  leaving  to  the  gov- 
ernments the  means  of  accomplishing  their  difficult  task, 
shall  at  the  same  time  guarantee,  as  far  as  possible,  the  se- 
curity of  States,  the  right  and  the  liberty  of  individuals; 

Considering  that  the  vceu  to  see  these  principles  recog- 
nized and  sanctioned  can  involve  no  estimate  of  past  acts  of 
expulsion ; 

Is  of  the  opinion  that  the  expulsion  and  admission  of 
aliens  should  be  subject  to  certain  rules,  and  suggests,  while 
waiting  for  a  complete  draft  which  could  be  discussed  at  a 
later  date,  the  following  provisions : 

Abticle  1.  In  principle,  every  sovereign  State  may 
regulate  the  admission  and  expulsion  of  aliens  in  such  man- 
ner as  it  thinks  best;  but  it  is  in  keeping  with  public  faith 
that  aliens  be  previously  advised  of  the  general  rules 
which  the  State  intends  to  follow  in  the  exercise  of  this 
right. 

Abticle  2.  Except  in  cases  of  extreme  necessity,  such 
as  war  or  serious  disturbances,  a  distinction  should  be  made 
between  ordinary  expulsion,  applying  to  specific  individuals. 


i 


■Annuaire,  vol.  10,  p.  ilj. 


'  Ibid.,  p.  2M. 


90      Reaolutiont  of  the  Institute  of  International  Law 

and  extraordinary  expulsion,  applying  to  classes  of  in- 
dividuals. 

Article  8.  Expulsion  under  pressure  of  necessity  shall 
be  only  temporary.  It  shall  not  exceed  the  duration  of  the 
war  or  a  period  determined  upon  in  advance,  at  the  expira- 
tion of  which  it  may  be  at  once  converted  into  ordinarj- 
or  extraordinary  expulsion. 

Ahticle  4.  Extraordinary  expulsion  shall  be  accom- 
plished by  a  special  law  or  at  least  by  an  ordinance  pre- 
viously promulgated.  The  general  ordinance,  before  being 
carried  out,  should  be  made  public  a  reasonable  time  before- 
hand. 

Abticle  5.  In  ordinary  expulsion,  those  individuals 
who  are  residents  or  who  have  a  commercial  establishment 
must,  from  the  standpoint  of  guaranties,  be  distinguished 
from  those  who  have  neither. 

Aeticle  6.  A  decision  decreeing  ordinary  expulsion 
and  stating  the  provisions  on  which  it  is  based  must  be  made 
known  to  the  party  interested  before  being  put  into  execu- 
tion.' 


COMPETENCE  OF  COURTS  IN  SUITS  AGAINST 
FOREIGN  STATES  OR  SOVEREIGNS* 

The  question  was  put  on  the  order  of  the  day  at  the  close  of  the 
session  at  Lausanne  on  the  motion  of  Mr.  von  Bar,  who  was  appointed 
reporter  of  the  committee  with  Mr.  Westlake.'  The  question  resulttd 
in  works  by  the  two  reporters  and  by  Messrs.  Gabba  and  Hartmanii.* 

The  Institute  deliberated  September  8  and  11,  1891,  in  plenary  ses- 
sion on  the  Draft  International  Reffulations  presented  by  Mr.  von  Bnr, 
and  adopted  it  in  the  latter  meeting.'  This  text  was  revised  by  the 
drafting  committee  after  its  reconstitution  in  September,  1892. 

"  For  subsequent  action  of  the  Institute  on  expulsion  of  aliens,  see  poit,  p.  103. 
•Tableau  gfnfral,  p.  116. 

•  Annuaire,  vol.  10,  p.  295. 

'Journal  du  droit  international  privf,  vol.  16,  pp.  180  and  538,  vol.  17.  p.  3«; 
Rtvut  de  droit  international,  vol.  xxii,  p.  425;  Annuaire,  vol.  11,  pp.  410  et  teq. 

•  Ibid.,  p.  4.16. 


Suits  Against  Foreign  States  or  Sovereigns       91 


Dbaft  Intehxational  Regulations  ox  the  Competence 
OF  CouHTs  IN  Sum  Against  Fobeion  States,  Sover- 
eigns, OE  Heads  of  States  ' 

Abticle  1.  Movable  property,  including  horses,  car- 
nages, wagons,  and  vessels,  belonging  to  a  foreign  sovereign 
or  head  of  State,  and  intended  directly  or  indirtctly  for  the 
actual  use  of  that  sovereign  or  head  of  State  or  of  persons 
accompanying  him  in  his  service,  is  exempt  from  seizure. 

Ahticle  2.  Likewise  exempt  from  any  seizure  are  mov- 
able property  and  immovable  property  belonging  to  a  for- 
eign State  and  intended,  with  the  express  or  tacit  approval 
of  the  State  in  whose  territory  it  is,  for  the  service  of  the 
foreign  State. 

Article  8.  Nevertheless  a  creditor  for  whose  benefit 
somethmg  belonging  to  a  foreign  State,  sovereign,  or  head 
of  State  IS  expressly  pledged  or  hypothecated  by  that  State, 
sovereign,  or  head  of  State,  can,  when  the  occasion  arises, 
retain  it  or  have  it  seized. 

Article  4.  The  only  actions  cognizable  against  a  for- 
eign State  are: 

1.  Real  actions,  including  possessory  actions  relating  to 
real  or  personal  property  within  the  territory; 

2.  Actions  based  upon  the  capacity  of  the  foreign  State 
as  an  heir  or  legatee  of  a  ressortissant  of  the  territory  or  as 
entitled  to  an  inheritance  taking  effect  in  the  territory; 

3.  Actions  relating  to  a  commercial  or  industrial  es- 
tablishment or  a  railroad,  when  exploited  by  the  foreign 
State  on  the  territory; 

4.  Actions  for  which  the  foreign  State  has  expressly 
admitted  the  competence  of  the  tribunal.  The  foreign  State 
which  itself  lays  a  complaint  before  a  court  is  deemed  to 
have  admitted  the  competence  of  this  court  as  regards  judg- 
ment for  costs  of  the  suit  and  as  regards  a  counter-claim 
arising  out  of  the  same  affair;  likewise,  a  foreign  State 
which,  when  making  answer  to  an  action  brought  against 

'  Tableau  giniral,  p.  117. 


,\y. 


92      RefolutioTU  of  the  Inatitute  of  International  Law 

it,  does  not  take  exception  to  the  jurisdiction  of  the  court, 
is  deemed  to  have  admitted  it  to  be  competent  to  hear  the 
case; 

5.  Actions  arising  out  of  contracts  entered  into  by  a 
foreign  State  on  the  territory,  if  the  complete  execution  on 
the  same  territory  may  be  required  of  it  according  to  an 
express  clause  or  Recording  to  the  very  nature  of  the  action ; 

6.  Actions  in  damages  founded  on  a  tort  or  quasi-tort 
committed  on  the  territory. 

Ahticle  5.  Actions  brought  for  acts  of  sovereignty  are 
not  cognizable,  nor  acts  arising  out  of  a  contract  of  the 
plaintiff  as  an  official  of  the  State,  nor  actions  concerning 
the  debts  of  the  foreign  State  contracted  through  public 
subscription. 

Article  6.  Actions  brought  against  foreign  sovereigns 
or  heads  of  States  are  subject  to  the  rules  laid  down  in 
Articles  4  and  5. 

Aeticle  7.  Nevertheless,  actions  resulting  from  obliga- 
tions contracted  before  the  accession  of  the  sovereign  or  the 
appointment  of  the  head  of  State  are  governed  by  the  ordi- 
nary rules  of  competence. 

Article  8.  The  sununons,  both  for  sovereigns  or  heads 
of  States  and  for  States  themselves,  are  made  through  the 
diplomatic  channel. 

Article  9.  It  is  desirable  that  in  each  State  the  laws  of 
procedure  accord  sufficient  time  so  that  in  cases  of  action 
brought  or  seizure  demanded  or  effected  against  a  sovereign 
or  head  of  State  or  a  foreign  State,  a  report  may  be  made 
to  the  government  of  the  country  in  which  the  action  has 
been  brought  or  the  seizure  demanded  or  effected. 


Communication  of  International  Treatiet  98 


COMMUNICATION  OF  INTERNATION/iL 
TREATIES ' 

..  o^*.*''^'^,"'''?  °'  Heidelberg  (1887)  Mr.  von  Martits  preiented  a 
Draft  of  ConcluttoM"  with  regard  to  rules  to  be  followed  in  the 
pubhcaUon  of  treaties;  but  the  meeUng  did  not  have  time  to  begin  the 
ezamination  of  this  item  of  its  program.'  This  was  likewise  the  case  at 
the  session  of  Lausanne  (1888).* 

At  Hamburg  (1891)  when  the  question  was  brought  up  for  dis- 
cussion, the  unanimous  opinion  that  the  best  method  of  reaching  the 
desired  result  was  to  form  an  international  union  of  which  all  the  in- 
terested States  should  be  members,  showed  itself  from  the  first.  Two 
recent  events  encouraged  this  view:  (1)  the  formation  at  Brussels, 
in  fulfilment  of  the  international  convention  of  July  3,  1890,  of  an  in- 
sUtution  created  at  common  expense  by  fifty-one  States,  for  the  purpose 
of  publishing  the  customs  tariffs  of  all  countries  in  the  world:  (8)  a 
letter  addressed  to  the  Institute,  August  27,  1891,  by  the  Department  of 
Justice  and  Police  of  the  Swiss  Federation,  informing  the  InsUtute  that 
should  the  latter  express  the  wish,  the  Swiss  Federal  Council,  recog- 
niirng  the  service  which  such  an  international  union  could  render  by  the 
pubhcation  of  treaties,  would  be  disposed  to  take  the  initiative  in  diplo- 
matic negotiations  for  its  creation.*  Consequently,  the  Institute,  at  the 
session  of  September  12,  1891,  adopted  the  following  draft  of  resolution:  • 

The  Institute  utters  the  vceu  that  an  International 
Union  may  be  formed,  by  means  of  a  treaty  to  which  all 
civilized  States  should  be  invited  to  adhere,  for  the  purpose 
of  securing  in  as  universal,  prompt  and  uniform  a  manner 
as  possible,  the  publication  of  the  treaties  and  conventions 
between  the  States  which  are  members  of  the  Union/ 


MARITIME  SLAVE  TRADE' 

In  1885,  at  the  session  of  Brussels,  the  Institute  placed  upon  its 
program,  at  the  suggestion  of  Mr.  von  Martitz,  a  question  intended  to 
produce  an  examination  of  the  theory  of  the  Conference  of  Berlin  on  the 
Subject  of  the  occupation  of  territories.  The  action  taken  upon  this 
general    question    has    been    noted,'    under    the    title    "Occupation    of 

•  Tableau  gfniral,  p.  93. 
'  Aninuxire,  vol.  9,  p.  SOi. 

'  Ibid.,  vol.  10,  p.  246.    Remarks  of  Count  Kamarovsky. 

'Ibid.,  vol.  11.  p.  sai.  .se<-  ,u„t.  p,  97.  *Ante,  p.  86. 

•  Ibid.,  p.  Si8.  T  Tableau  giniral,  p.  93. 


94      Resolutions  of  the  Institute  of  International  Law 

territoriei."  But  Mr.  Ed.  Engelhardt,  while  studying  the  general  question 
concurrently  with  the  reporter,  had  inserted  in  his  draft  of  conclusions 
provisions  regarding  the  suppression  of  the  slave  trade  and  the  regulation 
of  sla%'e  ships.  The  Institute,  at  its  session  in  Lausanne,  1888,  decided 
that  these  provisions  deserved  a  srpnrate  examination  and  formed  a  new 
committee  to  study  them,  with  Mr.  Engelhardt  as  reporter.' 

In  the  meantime  the  International  Conference  which  met  at  Brussels 
in  1889  and  1890  adopted  a  General  Act  consisting  of  100  articlen, 
forming  a  complete  code  for  the  suppression  of  the  slave  trade  both  on 
land  and  on  sea.  Immediately  after  the  signa  .ire  of  this  Act  (July  2, 
1890),  Mr.  Engelhardt  addressed  a  report  to  the  Institute  concerning 
the  articles  regarding  maritime  slave  trade,  in  which  he  stated  that  the 
supervision  provided  for  therein  was  not  uniform  in  character,  and  that 
there  might  be  ground  for  arranging  it  in  a  more  complete  manner, 
especially  by  organising  mixed  courts  of  prize; '  in  contemplation  of  the 
session  at  Hamburg,  he  therefore  drew  up  n  draft  of  "  Resolutions  con- 
cerning the  supervision  of  maritime  slave  trade."  '  Family  reasons  having 
prevented  the  reporter  from  being  present  at  Hamburg,  the  discussion  of 
these  resolutions  was  postponed  to  another  session.  But,  as  one  of  the  great 
Powers  represented  at  the  Conference  of  Brussels  had  refused  to  ratify  the 
Act  signed  by  its  plenipotentiaries  in  1890,  and  therefore  to  a  certoin  ex- 
tent rendered  useless  the  results  of  the  International  Conference,  the  In- 
stitute, while  deciding  to  continue  the  committee  in  charge  of  the  projert 
of  Mr.  Engelhardt,  adopted  at  the  suggestion  of  Mr.  Rolin-JnequemyiiM, 
in  the  plenary  sesi>i-.  n  of  September  12,  1891,*  the  following  "  Fceu  with 
the  reasons  therefor  "; 

V(Eu  OF  THE  Institute,  with  the  Reasons  Therefor, 
Looking  to  the  Complete  Ratification  of  the  Gen- 
eral Act  of  Brussels  ' 

The  Institute  of  International  Law,  considering  the 
preparatory  work  of  the  sixth  committee,  formed  at  Lau- 
sanne in  1888  and  having  as  its  purpose  a  study  of  Maritime 
slave  trade  and  supervision  of  slave  ships; 

Considering  the  memoir  and  conclusions  of  Mr.  Engel- 
hardt, reporter  of  that  committee; 

Considering  the  General  Act  of  the  Conference  of  Brus- 
sels, July  2,  1890,  and  especially  Articles  20  to  61,  having 
for  their  purpose  the  suppression  of  the  maritime  slave 
trade; 

Considering  that  this  Act,  which  was  agreed  to  after 


'  Ai>  lire,  vol.  10,  p.  174. 
■  Ibid.,  vol.  11,  pp.  2*1-26*. 
•  Ibid.,  p.  262. 


'  Ibid.,  p.  268. 
Ibid.,  p.  369. 


Maritime  Slave  Trade  05 

long  and  mature  deliberations  by  the  representatives  of 
seventeen  Powers,  amonK  which  were  all  the  maritime 
Powers  of  Europe  and  the  United  States  of  America,  marks 
considerable  progress  in  public  international  law,  sinct  it 
gives  the  sanction  of  common  consent  of  the  high  contract- 
ing Powers  to  a  collection  of  rules  intended  for  the  suppres- 
sion^ both  upon  land  and  upon  sea,  of  this  most  infamous 
traffic,  and  .or  the  civilization  of  an  entire  continent; 

Considering  that  the  part  of  this  Act  which  concerns  the 
suppression  of  the  slave  trade  upon  the  sea  justly  takes  into 
consideration  the  humanitarian  purpose  to  be  attained  and 
the  precautions  which  must  be  taken  in  order  that  the  riirht 
of  supervision  over  the  slave  ships  conferred  upon  the 
cruisers  of  the  signatory  Powers,  may  not  be  exercised  in  a 
manner  unnecessarily  vexatious  or  offensive  to  the  sover- 
eignty or  the  dignity  of  any  of  the  contracting  parties. 

Considering  that  to  this  end  the  Conference  first  clearly 
distinguished  lietween  the  Powers  already  bound  together  by 
special  conventions  for  the  suppression  of  the  slave  trade  and 
those  which  are  free  from  all  engagements  upon  this  subject; 
Considering  that  as  a  result  the  provisions  of  these  special 
conditions  regarding  the  reciprocal  right  to  visit  vessels  at 
sea,  are  strictly  limited  to  the  Powers  which  have  formally 
adhered  thereto;  ^ 

Considering  that,  far  from  extending  these  special  pro- 
visions to  the  Powers  not  parties  thereto,  the  Generrl  Act 
01  JJrussels  lunits  in  a  general  manner  any  international 
exercise  of  maritime  supervision  of  the  slave  trade  to  a  zone 
extending  along  the  eastern  coast  of  Africa  and  to  vessels 
ot  less  than  500  tons;  that  the  purpose  of  these  restrictions 
is  to  render  practically  impossible  any  interference  with  the 
commercial  relations  between  the  ports  of  Europe  or 
America  and  the  rest  of  the  world  as  a  result  of  the  prosecu- 
tion  of  the  slave  trade; 

Considering  that,  in  so  far  as  the  Powers  which  are  free 
from  all  conventional  bonds  are  concerned,  the  provisions  of 
the  General  Act  of  Brussels  put  a  most  happy  and  con- 
dilatory  end  to  the  difference  in  views  which  has  existed 


l\ 


00      Retolutiop*  of  the  Institute  of  International  Law 

between  France  and  England  up  to  this  time  with  regard 
to  the  right  to  visit  suspicious  vessels;  that,  considering  thu 
traditions  of  the  former  of  these  Powers,  the  Act  of  Brussels 
has  in  no  wise  restored  the  right  of  visit  in  a  way  to  preju- 
dice it.  In  short,  this  Act  implies  simply  an  agreement  of 
all  the  Powers: 

1.  Upon  certain  uniform  rules  which  each  one  of  them 
will  apply  as  a  sovereign  within  its  own  jurisdiction,  con- 
cerning the  granting  of  a  flag  to  native  vessels,  the  list  of  the 
crew,  and  the  manifest  of  negro  passengers; 

2.  Upon  a  restricted  right  of  international  control,  re- 
stricted as  to  the  zone  and  tonnage,  within  the  limits  above 
mentioned  and  consisting  in  fact  of  a  verification  of  the  fla^; 

Considering  that  this  supervision,  being  limited  to  iin 
actual  verification  by  naval  officers  of  certain  papers,  clearly 
specified,  is  intended  to  prevent  native  vessels,  the  only  ones 
which  now  carry  on  the  slave  trade,  from  fraudulently  flying 
the  flag  of  one  of  the  signatory  Powers; 

Considering  that  as  to  ships  which  are  seized,  arrest,  in- 
quiry and  judgment  cannot  take  place  unless,  as  a  result  of 
the  performance  of  this  supervision,  "  the  cruiser  is  convinced 
that  an  act  of  trading  in  slaves  has  been  committed  on  board 
during  the  journey,  or  that  irrefutable  proof  exists  for 
charging  the  captain  or  the  owner  with  misuse  of  flag,  or 
fraud,  or  participation  in  the  slave  trade  "  (Article  69  of 
the  Act) ; 

Considering  that,  under  these  conditions,  it  is  highly  de- 
sirable that  the  Act  of  the  Conference  of  Brussels  should  be 
put  into  execution,  so  as  to  permit  not  only  the  more  effective 
suppression  of  the  slave  trade  upon  the  sea,  but  so  as  not  to 
delay  longer  the  organization  of  an  entire  group  of  institu- 
tions and  measures  intended  to  prevent,  directly  or  indi- 
rectly, slave  trade  on  land ;  that,  furthermore,  by  Article  97 
of  the  Act  the  Powers  reserve  the  right  "  to  introduce  in  the 
future  by  conmion  agreement  modifications  or  improvements 
the  value  of  which  may  be  demonstrated  by  experience  " ; 

For  these  reasons,  and  while  reserving  the  right  to  ex- 
amine in  the  future,  at  the  proper  time,  these  modifications 


Communicatim  of  International  Treati-  07 

or  improvements,  the  Institute  expresses  the  veeu  that  the 
General  Act  of  Brussels  may  be  ratified  as  soon  as  possible 
by  all  the  Powers  the  plenipotentiaries  of  which  signed  it. 


COMMUNICATION  OF  INTERNATIONAL 
TREATIES ' 

Mr.  von  M.rtiti  .nd  Mr.  Rolln-Jaequemyn.,  the  Utter  tince  repUced 
at  hi«  own  requeit  by  Afr.  Martent,  were  instructed  to  make  uie  of  the 
preparatory  work  already  performed,  and  to  coniult  other  members  of 
the  ninth  committee  in  drafting  as  soon  as  possible  a  "  Draft  conven- 
tion    and  "  Regulations  for  its  execution  "  for  the  above  purpose 

This  twofold  draft,  especially  worked  out  by  .Mr.  Martens,  was  pre- 
sented to  the  Institute  at  the  session  of  Geneva  and  adopted,  September 
7.  1898,  in  the  form  given  below. 

Immediately  after  the  session,  and  in  reply  to  the  letter  of  Aagnrt 
27.  '891.  the  two  texts  adopted  by  the  Institute  were  communicated 
through  the  Bureau  to  the  Federal  Council  of  the  Swiss  ConfederaUon, 
in  order  to  serve  as  a  starting  point  for  diplomatic  negoUations  for  the 
purpose  of  creating  the  International  Union  in  question. 

Dhaft  of  Convention  Concehnino  the  Cbeation  of  an 
Intehnational  Union  fob  the  Publication  of  the 
Tbeaties  Concluded  by  the  Powebs  Which  May 
Accede  Thebeto' 

His  Majesty,  the  German  Emperor,  etc.,  etc.,  etc.  .  .  . 
animated  by  the  desire  to  facilitate,  as  far  as  possible,  the 
e.\act  and  prompt  communication  of  all  treaties,  conventions 
and  mtemational  arrangements  of  whatever  character  con- 
cluded twtween  them,  or  by  the  contracting  government.s 
Hith  ottHtT  B<Mi-contructing  States,  have  decided  to  conclude 
the  present  conventam  in  order  to  ensure  the  publication  of 
the  intersaifflBmii  atas  above  mentioned,  and  have  named,  etc., 
etc.,  eiSL 

Wte.  after  fnmnmnication  of  their  full  powers,  found  in 
^m  and  due  Torm.  rmve  a^eed  upon  the  following  articles: 
_   Article  1     An  association  bearing  the  name  of  "'  In- 


p.  153. 


antf.  pe.  64.  93. 


■  ;: 


08      Resolutions  of  the  Institute  of  International  Law 

temational  Union  for  the  Publication  of  Treaties  amonf? 
States  "  is  hereby  formed  by  the  agreement  of  the  govern- 
ments of  .  .  .  and  of  all  governments  which  shall,  in  the 
future,  accede  to  the  present  convention. 

Akticle  2.  This  Union  has  for  its  purpose  the  publica- 
tion, at  common  expense,  and  the  prompt  and  correct  com- 
munication of  international  agreements  of  whatever  char- 
acter, form,  or  scope,  concluded  by  the  diflPerent  contracting 
States. 

Article  8.  To  this  end  there  shall  be  created  at  Berne 
an  International  Bureau  charged  with  the  publication  of  the 
treaties  and  conventions  between  States. 

A  special  set  of  rules,  determining  the  operation  of  this 
Bureau,  is  annexed  to  the  present  convention  and  shall  have 
the  same  binding  force  as  it. 

Abticle  4.  The  International  Bureau  shall  publish  a 
collection  entitled  RecueU  international  des  traitis  (Inter- 
national collection  of  treaties).  This  publication  shall  be 
recognized  as  the  official  organ  of  the  International  Union 
for  the  Publication  of  Treaties  among  States,  and  shall  be 
proof  thereof  before  all  of  the  tribunals  of  the  contracting 
Powers. 

Akticle  5.  The  contracting  Parties  agree  to  communi- 
cate to  the  International  Bureau  as  soon  as  possible,  for 
publication  in  the  Recueil  international  des  traitis  et  con- 
ventions, the  following  docimients: 

1.  All  treaties,  conventions,  declarations  or  other  inter- 
national acts  of  binding  force  upon  the  States  signatory  to 
the  present  convention,  and  which  may  be  published  in  the 
different  countries ;  international  acts  concluded  by  the  con- 
tracting Powers  with  States  which  have  not  adhered  to  the 
present  International  Union  are  not  excluded  from  this 
communication; 

2.  All  domestic  laws,  ordinances,  or  regulations  pub- 
lished by  the  contracting  governments  in  their  respective 
countries  in  compliance  with  treaties  or  conventions  signed 
in  their  names  and  ratified ; 

8.   Procis-verbatuc  of  international  congresses  or  con- 


Communication  of  International  Treaties  99 

wr^'^ii'V^''"  ^  transmitted  to  the  International 
^^  ^^  the  Power  upon  the  territory  of  which  these  con- 
gresses  or  conferences  shall  take  place; 

I.  it'   i^""^^*"  o'  instructions  which  the  said  governments 
shall  address  to  their  diplomatic  or  consular  a^  ?^  the 
purpose  of  ensuring  the  uniform  execution  of  inteniational 
agreements  entered  into  by  them,  provided  that  each^ovem 
men  shall  determine  for  itself  the  propriety  of  c^mScS- 
Sruc^oL      ""'*""''  ^"'^^^  any  Wcular  c^uTar  or 
ABTictE  6.   All  the  documents  mentioned  in  the  nre- 
cedmg  article  shall  be  communicated  to  the  International 
Bureau  m  the.r  original  text  and  accompanied  rrFrench 
translation  where  necessary.  O'a^rencn 

by  ^^e'S  L.Vi"  f  f  d.e^^^'-nts  officially  communicated 
Pubh^ed  t  ^  i  '  7  ^'  International  Bureau,  shall  be 
Tthe  althent^o  f  ^"'/f  ^'•'^'^^^^^  des  traites  according 
to  the  authentic  text  in  the  original  language,  without  the 
shghtest  change  in  the  act  thus  communic^ed. 

International  acts  not  concluded  in  French  shall  be 
published  with  a  French  translation  expressirrecZiizL 

tic  te'xtTrr  f'^^'"  "  •"  ^°"^°^™^  with  the  :S 
upon  tlrl*^'  '''"'y  ""'  ^°"^^"«°«  «nd  as  of  binding  effect 

Every  exception  from  this  general  rule  should  be  stated 
formally  and  mentioned  at  the  head  of  the  act  when  put 

thefnf?i^?r**  t^  international  acts  shall  be  published  by 
the  International  Bureau  without  comment  ^ 

Aeticle  9    The  contracting  or  adhering  States  agree 
o  communicate  to  the  International  Burem,  all  interna 

i.ey  go'tt  IS  ''n'?.*'^"  '^  ^'*'^'"  twoVontisX 
Stfon   2  atnSif    •*?'"  "'*'  enmnerated  in  Article  5 

fnrn^"T^  ^^'    '^^^  present  convention  shall  remain  in 

mZcZYi^V'^^^^^^^  ^^^'""^^  ^'  ratification" 
AHTiCLE  11.   Upon  the  request  of  a  contracting  or  adher- 


100    Retolutiotu  of  the  Institute  of  Intematiorud  Law 

ing  government  a  new  international  conference  may  be  called 
after  the  expiration  of  five  years,  in  order  to  introduce  such 
improvements  or  modifications  as  may  be  deemed  useful  or 

necessary.  . ,  j  .     • 

Article  12.  If  no  such  request  as  is  provided  for  m  the 
preceding  article  is  made  twelve  months  before  the  expira- 
tion of  the  first  five  years,  the  present  convention  shall  re- 
main in  force  for  the  ensuing  five  years,  and  thus  continue 
for  five-year  periods. 

In  faith  whereof,  etc.  .  .  . 


DBAFT  HE0ULATI0N8  FOE  THE  EXECUTION  OF  THE  CONVEN- 
TION ESTABLISHING  AN  INTERNATIONAL  BUREAU  FOR  THE 
FUBUCATION  OF  TREATIES  AMONG  STATES 

I. — Organization  of  the  International  Bureau 

Article  i.  The  International  Bureau  shall  be  organized 
imder  the  supervision  of  the  government  of  the  Swiss  Con- 
federation under  the  conditions  provided  in  the  following 

Articles  ■ 

Article  2.  The  personnel  of  the  International  Bureau 
shall  be  named  by  the  Swiss  Federal  Government,  which  shall 
communicate  to  the  contracting  or  adhering  States  the  meas- 
vaes  taken  for  the  regular  operation  of  the  institution. 

Article  8.  The  Swiss  Federal  Government  shall  super- 
vise the  regular  operation  of  the  International  Bureau.  It 
shall  advance  the  necessary  funds  for  the  first  installation  of 
the  International  Bureau,  shall  supervise  the  expenditures, 
and  provide  for  an  annual  accoimting. 

Article  4.  An  annual  report  of  the  work  and  financial 
management  of  the  International  Bureau  shall  be  presented 
each  year  to  the  interested  governments. 

Article  5.  The  International  Bureau  has  the  right  to 
correspond  directly  with  all  the  interested  governments  and 
to  request  all  information  necessary  to  insure  the  prompt  and 
accurate  publication  of  the  documents  communicated  to  it  in 
pursuance  of  Article  5  of  the  convention. 


Communication  of  International  Treaties        lOl 

u-,2®  International  Bureau  shaU.  within  the  limits  of  its 
abihty  and  the  means  at  its  disposition,  reply  to  the  requests 
on  the  part  of  the  pubbc  for  information  and  explanations. 

II.— Recueil  International  dea  Traitia 

iirJ^ff^  v^  °K  ^n?^"™!.''*  ^^""'^  °^  *h«  *^«*^  interna, 
ttonaldea  traxtia  shall  be  published  each  year 

Aeticle  7.  Each  volume  shall  contain  a  chronological 
table  of  contents  m  addition  to  the  text  of  the  documents 
commmucated  by  the  contracting  or  adhering  governments. 

ARTICLES.  Each  government  shall  receive  copies  of  the 
trSon  *"         '"^  ^''  ^"^^^'  '"  P^°P°rti°°  to  its  con- 


in.-Budget-Diviaion  of  Expemtea  of  the  Inte.  mtiond 

Bureau 

Abticu:  9.  The  budget  of  the  International  Bureau  is 
set  approximately  at  100,000  francs. 

Aeticle  10.  This  budget  shall  be  maintained  by  a  pro- 
portional contribution  from  the  contracting  or  adhering 
States  and  from  the  returns  from  the  subscriptions  to  the 

Stetef  ""  ''*^**'*'°"  *°  *^^  '''^'■^'  °^  *^^  ^"'°"s 

Ahticu:  11.  With  a  view  to  determining  equitably  the 
shares  to  be  contributed  by  the  contracting  or  adhering 
Jstates,  the  latter  are  divided  into  six  classes,  each  contribut- 
ing m  proportion  to  a  certain  number  of  units,  w^.; 

First  class 25  units 

Second  class  20 

Third  class  15 

Fourth  class 10 

Fifth  class 5 

Sixth  class 3 

Ahticle  12.    Each  of  the  coefficients  above  given  shaU 
be  multiplied  by  the  number  of  States  in  the  corresponding 


102    ReaoluiioTU  of  the  Institute  of  International  Law 

class,  and  the  sum  of  the  products  thus  obtained  shall  fur- 
nish the  number  of  units  by  which  the  total  expense  shall  be 
divided.  The  quotient  gives  the  unit  of  expense,  and  to 
obtain  the  amount  of  the  contribution  of  each  State  to  the 
expenses  of  the  International  Bureau  it  is  sufficient  to  mul- 
tiply this  unit  by  the  coefficient  of  the  class  to  which  this 
State  belongs. 


EXTRADITION  * 

In  1885  at  Brussels,  Mr.  AlWric  Rolin  submitted  to  the  Institute 
some  criticisms  with  a  view  to  the  revision  of  some  of  these  resolutions ;  = 
discussion  of  these  observations  was  deferred  to  the  following  session.' 
At  Heidelberg  the  Institute  at  its  meeting  of  September  9,  1885,  discussed 
at  length  the  amendmenU  proposed  by  Mr.  Alb^ric  Rolin  and  without 
Uking  any  position  with  respect  to  their  merits  unanimously  voted  that 
the  entire  question  of  the  conflict  of  laws  regarding  extradition  be  re- 
ferred to  the  committee  on  the  conflict  of  pennl  laws.* 

At  Lausanne,  where  Mr.  Rolin  was  unable  to  be  present,  but  where 
Mr.  Lammasch  had  on  his  part  formulated  several  amendments,  the 
Institute  on  motion  of  Mr.  Renault,  reporter  of  the  committee,  adopU-d 
a  motion  "  asking  Mr.  Alberic  Rolin  to  investigate  the  questions  raised  by 
extradition  for  political  acti  (Articles  13  and  U  of  the  Resolutions  of 
Oxford)  and  Mr.  Lammasch  on  the  subject  of  the  rightt  of  the  perton 
extradited  in  the  requesting  country  (Article  26  of  the  same  Resolu- 
tions.) " '  ... 

These  two  members  stated  their  conclusions  in  papers  submitted  to 
the  Institute  at  its  Hamburg  session  in  1891.»  Mr.  Lammasch  not  ha\inf? 
been  able  to  attend  that  session  nor  the  one  at  Geneva  in  1892,  the 
examination  of  his  conclusions  respecting  Article  26  has  not  yet  been 
taken  up  by  the  Institute  in  plenary  session.  The  conclusions  presented 
by  Mr.  Alberic  Rolin  relative  to  Articles  13  and  14  were  the  subject  cf 
preliminary  discussion  at  Hamburg,  where  on  September  10,  1891,  the 
Institute  passed  a  motion  to  examine  them  at  the  following  meeting.'  At 
Geneva  Mr.  Alberic  Rolin  presented  a  new  report  accompanied  by  prop- 
ositions with  supporting  reasons.*  After  deliberation  in  the  plenary 
session  of  September  8,  1892,  the  following  four  articles  proposed  by  Mr, 
Rolin  were  adopted,  the  first  three  to  take  the  place  of  Article  l.i  of  the 
Resolutions  of  Oxford,  and  the  fourth  to  take  the  place  of  Article  It:" 


•  Tableau  gfnirat,  p.  103. 

•  AwKvairt.  vol.  8,  p.  198. 

•  Ibid.,  p.  167. 

•  Ibid.,  vol.  9.  p.  141. 
'Ibid,  vol,  10,  p,  1S9. 


See  ante,  p.  +2. 


'Ibid.,  vol.  11,  pp.  173-ns. 
'  Ibid.,  p.  232. 

•  Ibid.,  vol.  12,  pp.  156  ft  >eq. 
*lbid.,  p.  183. 


Extradition  iQg 

Aeticle  1.  Extradition  is  inadmissible  for  purely  po- 
litical  crimes  or  offenses.  i""^v  po- 

Abtici^  2.   Nor  can  it  be  admitted  for  milawful  acts  of 
a  mixed  character  or  comiected  with    political  criijfs  or 
offenses,  also  called  relative  political  offenses  unlesr^nthl 
case  of  crimes  of  great  gravity  from  the  po^n^^    vi  "w  o 
morality  and  of  the  common  law.  such  as  murder   In 

lully  with  premeditation,  attempts  at  crimes  of  ihflTl.v^^ 
outrages  to  property  by  arson,  explosion  or  SL^inl^d 
serious^thefts.  especially  when  comiSitted  withtJoS  ^a 

Article  8.  So  far  as  concerns  acts  committed  in  tho 
course  of  an  insurrection  or  of  a  civil  waX^  if  Z 
parties  e. gaged  in  the  struggle  and  in  the  interest  of  fts 
cause,  they  cannot  give  occasion  to  extradition  unless  thev 
aws"o/  ^T.,'''''''""*^  ""'  ^-d«''«"'  forbidden  by  t^^ 
AHTicLE  4.    Criminal  acts  directed  against  the  base«!  nf 

:  aTel^nTm  ot"'  '^"^  "°*  ''"'^  ^^^'^^  ^ clrtafnTta;' 
or  a  certain  form  of  government,  are  not  considered  political 
offenses  m  the  application  of  the  preceding  rules 


ADMISSION  AND  EXPULSION  OF  ALIENS  > 

At    the    same     tinie  %„otrr    DraV  Xt      T  ^'"^^^^^^^ 

the  12th  of  the  same  m„nfh  L  Vi'      a  ""' ^'^''»ft  »*  t^'s  session,  and  on 
debate  to  another  meeUng!"'  ""^"^  "'  *''^  •^•"""'•"^'''  •^^^"««J  t*"" 

cussfoll'lM^To^^Brs'a^'r^r''  ""  i"-;"'"  "''J^'^"-  ^  'he  dis- 
^    Mr.  von  Bar  s  draft,  further  amended  according  to  the  advice  of 

■  Tableau  giniral.  p.  135.     See  also  «,<«.  p.  88.  •  Ibid    d   313 

Annwnre,  vol.  11.  p.  jsj.  .  ,f^'  "^^ 

'/fc«..  p   274  "'"'•'  PP-  318.  321. 


i 


104    Retdutioni  of  the  Itutitute  of  International  Law 

many  memben  of  the  committee,  and  it  reialted,  in  the  meeting  oi 
September  9,  1898,  in  the  adoption  of  the  following  text' 

International  Regulations  on  the  Admission  and  Ex- 
pulsion OF  Aliens  * 

The  Institute  of  International  Law, 

Considering  that,  for  each  State,  the  right  of  admitting 
or  not  admitting  aliens  to  its  territory,  or  of  admitting  them 
r*-'--  conditionally,  or  of  expelling  them,  is  a  logical  and 
iiectissary  consequence  of  its  sovereignty  and  its  inde- 
pendence; 

Considering,  however,  that  humanity  and  justice  require 
States  not  to  exercise  this  right  except  with  due  regard,  so 
far  as  is  compatible  with  their  own  safety,  for  the  right  and 
the  liberty  of  aliens  who  wish  to  enter  their  said  territory  or 
who  are  already  there; 

Considering  that,  from  this  international  standpoint,  it 
may  be  well  to  formulate,  in  a  general  way  and  for  future 
application,  some  stable  principles,  the  acceptance  of  which 
would  not,  however,  imply  any  criticism  of  past  acts; 

Proposes,  in  the  admission  and  expulsion  of  aliens,  the 
observance  of  the  following  rules: 

Chapter  I. — Preliminary  Provisions 

Article  1.  In  the  meaning  of  the  present  Regulations, 
all  those  are  considered  aliens  who  have  no  actual  right  of 
nationality  in  a  State,  without  distinction  as  to  whether  they 
are  simply  passing  through,  or  are  resident  or  domiciled,  or 
whether  they  are  refugees  or  have  entered  the  coimtry  of 
their  own  free-will. 

Article  2.  In  principle,  a  State  must  not  forbid  en- 
trance to  or  sojourn  in  its  territory  either  to  its  subjects,  or 
to  those  who,  after  having  lost  their  nationality  in  the  said 
State,  have  acquired  no  other. 

>/<iini(air«,  vol.  19,  pp.  184-926. 

"  Ibid.,  p.  918.  This  text  l»  the  one  which  has  been  agreed  upon  and  numbered 
by  the  editing  commHtee,  by  special  order  that  it  reeeived  from  the  Institute  it 
the  aboTC-mentioned  meeting. 


Admution  and  Expidnon  of  AUeiu  103 

Abxicle  8.  It  is  desirable  that  the  admissioc  and  expul- 
sion  or  ahens  be  regulated  by  law. 


Chaptie  II.— Conditions  Govehnino  the  Admission  of 

Aliens 

Article  4  Cases  of  reprisal  and  retorsion  are  not  sub- 
ject to  the  following  rules.  However,  aliens  domiciled  in  a 
counby  with  the  express  authority  of  the  government,  may 
not  be  expeUed  on  the  ground  of  repi  sal  or  retorsion 

Ajjticle  5.  Colonies  where  European  civilization  is  not 
yet  dominant  are  also  excepted  from  the  following 
rules.  ** 

.  .,4*"^  ®-  ^'««  entrance  of  aliens  to  the  territory  of  a 
mdized  State,  may  not  be  generally  and  permanently  for- 
bidden except  in  the  public  interest  and  for  very  serious 
reasons,  for  example,  because  of  fundamental  differences  in 
customs  or  civUization,  or  because  of  a  dangerous  organiza- 
tion  or  gathering  of  aliens  who  come  in  great  numbers 

Ahtici^  7.  The  protection  of  national  labor  is  not,  in 
Itself,  a  sufficient  reason  for  non-admission. 

AHTICLE8.  In  time  of  war,  internal  dissension,  or  epi- 
dtmic,  the  State  shall  have  the  right  of  temporarily  restrict- 
ing or  prohibiting  the  entrance  of  aliens. 

AHTICIJ5  9.  Each  State  shall  determine  by  law  or  by 
regulations,  published  a  reasonable  time  before  being  put  in 
force,  rules  for  the  admission  or  passage  of  aliens. 

Article  10.  The  entrance  or  sojourn  of  aliens  may  not 
be  made  subject  to  the  coUection  of  excessive  taxes. 

Article  11.  All  essential  changes  in  the  conditions  for 
admission  and  sojourn  of  aliens,  including  changes  in  the 
taxes  which  concern  them,  must  be  communicated  as  soon  as 
possible  to  the  governments  of  the  States  whose  retsortussanU 
are  interested  therein. 

Article  12.  Entrance  to  a  country  may  be  forbidden 
to  any  alien  mdividual  in  a  condition  of  vagabondage  or  beg- 
gary, or  suffering  from  a  malady  liable  to  endanger  the  pub- 
lic health,  or  strongly  suspected  of  serious  offenses  com- 


11 


!  i 


106    Rcolutiont  of  the  Inttitute  of  International  Imid 

mitted  abroad  against  the  life  or  health  of  human  beings  or 
against  public  property  or  faith,  as  well  as  to  aliens  who  have 
been  convicted  of  the  said  offenses. 

Abticle  18.  A  State  may,  under  exceptional  circum- 
stances, admit  aliens  temporarily  only  and  with  the  under- 
standing that  they  are  forbidden  to  make  their  residence  in 
the  country,  provided  that,  as  far  as  possible,  the  prohibition 
shall  be  notified  to  each  individual  in  writing. 

The  prohibition  ceases  to  have  effect  if  not  repeated 
periodically  at  intervals  not  exceeding  two  years. 

Chapter  ''I.— Conditions  Go>Ti»Nmo  the  Expulsion  oi 

Aliens 

I. — General  Rules 

Article  14.  Expulsion  shall  never  be  ordered  for  pri- 
vate interests,  to  prevent  lawful  competition,  nor  to  stop  just 
claims  or  actions  and  suits  regularly  brought  before  com- 
petent courts  or  authorities. 

Article  15.  Expulsion  and  extradition  are  independent 
of  each  other;  a  refusal  to  extradite  does  not  involve  renun- 
ciation of  the  right  of  expulsion. 

Article  16.  An  expelled  person  who  has  taken  refuse 
in  a  country  to  escape  from  criminal  procedure,  may  not  be 
given  up,  in  an  indirect  way,  to  the  prosecuting  State,  unless 
the  conditions  imposed  with  regard  to  extradition  have  been 
duly  observed. 

Article  17.  Expulsion,  since  it  is  not  a  penalty,  should 
be  curried  out  with  all  possible  consideration,  and  with  due 
regard  for  the  particular  condition  of  the  individual. 

Article  18.  An  alien  may  be  ordered  to  live  in  a  certain 
place  or  not  to  leave  a  certain  place,  under  penalty  of  expul- 
sion for  infringing  the  order. 

Article  19.  Expulsions,  whether  individual  or  extraor- 
dinary, must  be  notified,  as  soon  as  possible,  to  the  govern- 
ments whose  ressortissants  they  concern. 

Article  20.  Periodically  account  shall  be  rendered, 
cither  to  the  national  rcpresent-itive,  or  by  means  of  an 


Admitrion  and  Expulnon  of  AUetu  107 

official  publication,  of  all  expulsions,  including  those  that 
have  been  reversed  or  revoked. 

Abtxcle  21.  Every  expelled  individual  who  considers 
hunself  a  native  or  who  holds  that  his  expulsion  is  contrary 
either  to  a  law  or  to  an  international  treaty  which  forbids  or 
expressly  excludes  it,  has  the  right  of  appeal  to  a  high 
judicial  or  administrative  court,  whose  judgments  are  en- 
tirely independent  of  the  government. 

But,  notwithstanding  the  right  of  appeal,  expulsion  may 
be  carried  out  provisionally. 

Article  22.  The  State  may  ensure  execution  of  orders 
of  expulsion  by  subjecting  the  expelled  persons  who  infringe 
them  to  prosecution  in  the  courts  and  to  sentence  at  the 
expiration  of  which  the  condenmed  shall  be  escorted  under 
public  guard  to  the  frontier. 


I? 

if 


II. — On  Various  Kinds  of  Expulsion 

Ahticle  28.  Definitive  extraordinary  (or  en  masse)  ex- 
pulsion applies  to  classes  of  individuals;  when  it  has  been 
ordered,  those  who  have  been  expelled  shall  not  be  at  liberty 
to  return  to  the  countrj-  upon  the  expiration  of  a  period  to 
be  determined  beforehand. 

Article  24.  Temporary  extraordinary  (or  en  masse) 
expulsion  applies  to  classes  of  individuals,  as  the  result  of 
war  or  serious  disturbances  arising  in  the  country;  it  is  effec- 
tive only  during  the  war  or  for  a  fixed  period. 

Artici^  25.    Ordinary  expulsion  is  purely  individual. 

Article  26.  Definitive  extraordinary  expulsion  requires 
a  special  law,  or  at  least  a  special  decree  of  the  sovereign 
power.  The  law  or  the  decree,  before  being  put  into 
execution,  shall  be  published  a  reasonable  time  in 
advance. 

Article  27.  Temporarj'  extraordinarj'  expulsion  may, 
at  the  end  of  the  war  or  of  the  fixed  jieriod.be  converted  into 
ordinarj'  expulsion  or  definitive  extraordinarj-  expulsion. 

The  period  originally  determined  upon  may  be  extended 

once. 


|.^ 


14 
IS 


!V|,|=    - 


108    Beiolutioru  of  the  Itutitute  of  International  Law 

III— IndividuaU  Who  May  be  Expelled 

AsTiCLE  28.   The  following  may  be  expelled: 

1.  Aliens  who  have  entered  the  country  by  fraud,  in 
violation  of  the  regulations  governing  the  admission  of 
aliens;  but,  if  there  is  no  other  reason  for  expulsion,  they 
may  no  longer  be  expelled  after  having  resided  six  months 
in  the  country; 

2.  Aliens  who  have  taken  up  their  domicile  or  their  resi- 
dence within  the  boundaries  of  the  country,  in  violation  of  a 
formal  prohibition; 

8.  Aliens  who,  at  the  time  that  they  crossed  the  frontier, 
were  suffering  from  diseases  liable  to  endangei  the  public 
health; 

4.  Aliens  in  a  state  of  beggary  or  vagrancy,  or  who  are 
a  burden  on  the  public; 

5.  Aliens  found  guilty  by  the  courts  of  their  own  coun- 
try of  offenses  of  a  certain  degree  of  seriousness; 

6.  Aliens  condemned  abroad  or  threatened  with  prosecu- 
tion for  serious  offenses  which,  according  to  the  laws  of  the 
country  or  in  accordance  with  extradition  treaties  concluded 
by  the  State  with  other  States,  might  give  rise  to  their  ex- 
tradition; 

7.  Those  aliens  who  are  guilty  of  instigating  the  com- 
mission of  serious  offenses  against  public  safety,  even  though 
the  acts  of  instigation,  as  such,  are  not  punishable  under 
the  law  of  the  land  and  though  the  offenses  were  only  to  be 
committed  abroad; 

8.  Those  uliens  who,  in  the  territory  of  a  State,  are 
guilty  or  strongly  suspected  of  attacks,  through  the  press  or 
otherwise,  upon  a  foreign  State  or  sovereign,  or  upon  the 
institutions  of  a  foreign  State,  provided  that  these  acts  be 
punishable  under  the  laws  of  the  expelling  State,  if  com- 
mitted by  natives  abroad  and  directed  against  that  State 
itself; 

9.  Aliens  who,  during  their  stay  in  the  territory  of  a 
State,  are  guilty  of  attacks  or  outrages  published  in  the 
foreign  press  against  the  State,  the  nation,  or  the  sovereign; 


Admittion  and  ExpuUion  of  Alien*  109 

10.  Alien,  who.  in  time  of  war  or  when  war  is  impending, 
endanger  the  safety  of  the  State  by  their  conduct 

AaxiCLE  29.  Alien  refractory  conscripts  and  deserters 
may  be  forbidden  to  sojourn  or  to  travel  in  a  zone  adjacent  to 
the  country  whence  they  come,  without  prejudice  to  more 
severe  provisions  of  international  treaties. 

l\.—FormaUtie$  of  EjcpuUion 

A.TICLE  80.  The  act  decreeing  expulsion  shall  be  noti- 
fied  to  the  expeUed  individual.  The  reasons  on  which  it  is 
based  must  be  stated  in  fact  and  in  law. 

ARTICLE  81.  If  the  person  expelled  has  the  right  of  ap- 
peal  to  a  high  court,  judicial  or  administrative,  he  shall  be 
informed  by  the  act  itself,  of  this  circumstance  and  of  the 
period  withm  which  the  appeal  must  be  made 

Abticle  82.    The  act  shall  also  mention  the  period 

withm  which  the  idien  must  quit  the  country.    This  period 

shaUnot  be  less  than  one  full  day.    If  the  expelled  is  at 

r^'  ""^  ~"P"^'°°  "^^  ^  "s«*  against  him  during  this 

Ahticxe  88.  An  alien  who  has  been  ordered  to  quit  the 
country  shaU  be  required  to  designate  the  frontier  by  which 
he  intends  to  leave;  he  shaU  receive  a  route  ticket,  giving  his 
Itinerary  and  the  length  of  his  stay  in  each  place.  In  the 
event  of  infringement,  he  shall  be  escorted  to  the  frontier 
under  pubhc  guard. 

V. — Appeal 

Abticle  84.  It  is  desirable  that,  in  cases  of  ordinary  ex- 
pulsion even  outside  of  those  cases  where  the  person  is  de- 
clared by  law  exempt  from  expulsion,  the  expelled  person 
be  given  a  right  of  appeal  to  a  high  judicial  or  administrative 
court,  independent  of  the  government. 

Abticle  85.  The  court  shall  render  judgment  only  upon 
the  legally  of  the  expulsion;  it  shall  not  pass  upon  the  con- 
duct of  the  person,  nor  the  circumstances  which  have  ap- 
peared to  the  government  to  render  expulsion  necessary. 


'I 
i 


no    Retolutiont  of  the  Itutitute  of  InternatiomU  Law 

AiTicut  86.  In  the  caic  mentioned  in  No.  10  of  Article 
28,  there  shall  be  no  appeal. 

Amticle  87.  Expulsion  may  be  provisionally  carried  out, 
notwithstanding  the  right  of  appeal. 

Abticle  88.  In  so  far  as  an  expulsion  shall  be  in  con- 
formity with  the  principles  of  international  law  stated  in 
these  regulations,  the  government  which  has  ordered  it  shall 
be  free  from  all  diplomatic  claims. 

Akticu!  89.  A  government  may  always  revoke  the  ex- 
pulsion or  temporarily  suspend  its  effects. 

Vl.—Expuhion  of  Rerident  Aliens  in  Particular 
Amticle  40.  Aliens  resident  in  the  country  may  not  be 
expelled  except  under  Provisions  7-10  of  Article  28  and, 
under  No.  6  of  the  said  article,  unless  the  sentences  that  have 
been  passed  upon  them  abroad  have  not  yet  been  fully  served 
or  remitted,  or  unless  the  sentence  pronounced  by  a  foreign 
court  is  subsequent  to  their  establishment  in  the  country. 

Article  41 .  The  expulsion  of  aliens,  domiciled,  resident, 
or  engaged  in  business,  shall  not  be  ordered  except  in  such  a 
way  as  not  to  betray  the  confidence  that  they  have  reposed  in 
the  laws  of  the  State.  It  shall  allow  them  liberty  to  use,  either 
directly,  if  possible,  or  through  the  intervention  of  a  third 
person  to  be  chosen  by  them,  every  lawful  means  to  settle 
up  their  business  and  their  interests,  both  assets  and  liabihties, 
in  the  country. 


EXTRADITION— REVISION    OF    THE    FINAL 
ARTICLE  OF  THE  OXFORD  RESOLUTIONS  ' 

The  Institute  having  decided  to  gubmit  to  revision  Article  26  *  of  tin- 
resolutions  voted  at  Oxford,  September  9,  1880,  Mr.  Lamraasch  was 
appointed  reporter.  At  the  Paris  session  of  1894  Messrs.  Lammasch  and 
Renault  presented  a  report,'  followed  by  a  supplementary  report  of  Mr. 
Lammasch  •  and  a  communication  from  Mr.  Kleen.'  The  di.scussion  in 
plenary  s.ssion  took  place  March  27,  1894,  and  terminated  in  the  follow- 
ing resolution:  * 


•  Annuairt,  vol.  90,  p.  305. 

•  Anif,  p.  45. 
*.tNUuairr,  vol.  13,  p.  17. 


•  Ibid.,  p.  97. 
•Ibid.,  p.  30. 
*Ibkt.,  pp.  335,  99.5. 


Smppretmon  of  Maritime  Slave  Trade  m 

The  per«)n  extradited  shall  have  the  right  to  invoke  the 
prescriptions  of  treaties.  laws  of  the  requesting  country  rela- 
tive to  extradition,  and  the  very  instrument  of  extradition 
and,  when  the  case  arises,  to  claim  that  they  have  been 
violated. 


INTERNATIONAL  UNION  FOR  THE  SUPPRFS 
SION  OF  THE  MARITIME  sLvE  TRADE  ^ 

In  inve.tig«ting  the  queitioti  of  territorial  occuimtion  entered  on  th^ 
program  of  the  Bru..el.  meeting  of  1883.  Mr.  Engelhard"  had  con.?de!Sd 
provwion.   coneerning  the  slave   trade.     The    Institute    -t»h!..f!- 
at  Lausanne  in  1888,  appointed  .  committee  to  investti-S  th^.  «.m'!? 

After  the  adoption  of  the  General  ActltfLu^ir,.  •'^^i'<^ 

Power,  of  the  provision,  relating  to  "h^,Iat  trade  l„d  i  "'l'** ," 
tule,  in  it.  meeting  held  at  Hamburg,  Sep  ember   18     i2q1    ,     ,    ""i 

Hamburg.  It  wa.  accompanied  by  a  fir.t-draft  of  resolution,  on  the 
-uperv,„o„  of  maritime  slave  trade.*  At  the  Pari,  mating  in  "so/ 
Mr  fcngelhardt.  with  the  concurrence  of  Mr.  MartenT  p?e.ented^; 
further  memo.r  and  a  new  preliminary  draft'    The  discuss ionTn  pTenarJ 

Draft  Regulations  on  the  Supervision  of  Slave  Ships  ' 

Considering  the  proch-verbal  of  the  meeting  of  the  In- 

stitute  under  date  of  Septemln^r  7.  1888.  recording  the  crea- 

lon  of  a  special  committee  ^o  investigate  the  question  of 

tke^slave  trade  and  the  regulation  of  the  supervision  of  slave 

Considering  the  General  Act  of  the  Brussels  Conference 
of  July  2.  1890.  especially  Articles  21  and  23.  which  restrict 
repressive  action  with  respect  to  maritime  slave  trade  to  a 
definite  portion  of  the  Indian  Ocean,  and  to  ships  of  less  than 
ouo  tons  burden ; 

__Considering  the  reports  and  conclusions  presented  Octo- 


'  Ibid.,  vol.  20.  p.  364. 
'Antt,  p.  94. 


Innuatrt,  vol.  II 


p.  ati. 


'  if>\d.,  p.  jea. 

'Ibid.,  vol.  13.  p.  36. 


'Ibid., 


p.  344. 


ih 


ni.,  p.  33j. 


112    Reaolutiofu  of  the  Institute  of  International  Law 

ber  1890  and  1898  by  Mr.  Ed.  Engelhardt,  reporter  of  the 
said  committee  of  the  Institute ;  * 

Considering  the  Resolution  of  September  12,  1891,  in 
which  the  Institute,  though  formulating  a  voeu  that  the 
General  Act  of  Brussels  receive  as  soon  as  possible  the  rati- 
fication of  the  governments  which  cooperated  in  drawing  it 
up,  reserved  the  right  of  considering  at  some  later  date  and 
in  due  time  what  modifications  or  improvements  might  be 
introduced  in  this  act; 

The  Institute  of  International  Law,  assembled  at  Paris, 
March  80,  1894,  expresses  the  opinion  that  it  would  be  well 
to  adopt  a  single  system  of  supervision  and  repression  of  the 
slave  trade  under  the  double  restriction  imposed  by  Articles 
21  and  28  of  the  General  Act  of  Brussels,  and  that  to  this 
end  it  would  be  desirable  for  all  naval  Powers  to  come  to  an 
agreement  on  the  basis  of  the  following  provisions: 

Article  1.  If  the  presumed  nationahty  of  a  merchant 
ship,  judging  from  the  flag  which  it  flies,  can  seriously  be 
questioned,  in  consequence  either  of  positive  information,  or 
of  material  indications  which  suggest  that  the  ship  does  not 
belong  to  the  nation  whose  flag  it  flies,  a  foreign  war-ship 
that  encounters  it  may  proceed  to  verify  the  pretended 
nationality. 

Article  2.  This  verification  shall  consist  in  an  examina- 
tion of  the  documents  authorizing  the  flying  of  the  flag,  which 
documents  shall  conform  to  a  single  and  absolutely  obliga- 
tory type. 

Native  ships  {boutres,  dhows)  may  be  required  to  have, 
in  addition  to  documents  establishing  nationality,  a  muster- 
roll  and  a  manifest  of  passengers. 

Article  8.  All  search  on  any  other  grounds  than  that 
of  nationality  is  forbidden,  without  prejudice  to  the  provi- 
sions of  Article  2,  paragraph  2. 

Article  4.  When,  in  consequence  of  the  verification 
provided  for  in  Article  2  above,  the  ship  shall  be  suspected 
of  fraud,  it  shall  be  taken  before  the  nearest  authority  of  the 
nation  whose  flag  it  has  been  flying. 


'  Ct.  Annuairf,  vol.  11,  pp.  23S  «(  itq.,  and  vol.  13,  p.  S8. 


Territorial  Waters 


118 


This  authority  shall  proceed  to  a  preliminary  investi- 
gation in  the  presence  of  the  capturing  officer. 


DEFINITION  AND  STATUS  OF  THE  TERRI- 
TORIAL  SEA ' 

The  qn"*!""  w«»  Pl»ced  on  the  order  of  the  day  of  the  session  of 
L«u«inne  to  1888^  Messrs.  Renault  and  Barclay  were  appointed  re- 
porters. At  the  Hamburg  session  in  1891,  Mr.  Renault  made  a  report 
on  the  subject.'    To  this   report   was   added   a   note   by   .Mr.   Aubert » 

A  ,n    ,fn,  .'"^l^u  ''i^**  '"  P'*''"""^  *""''"'  ^^  P^"«  September  8 
i  k     »      ^      ^^'^  ^'""''"'  '"'''°"  '"  '892  there  were  presented:  a 
report  by  Mr.  Barclay,  a  communication  from  Mr.  Kleen,  a  communica- 
tion from  Mr    Aubert,  and  modified   conclusions   by   Messrs.   Barclay, 

^ITl^^^'vl^t^'^f'  ""•""«^'.  Hartmann,  Olivart,  Perels  and 
Edouard  Rolm.'  These  documents  led  to  an  exchange  of  vie^s  in  plenary 
session  September  10,  1898.«  At  the  Paris  session  in  1894  Mr  B.rclaV 
presented  a  new  report.'  The  discussion  in  plenary  session  took  place 
rl'oTutions-  •  *''  '*       "'"*  '""'**^  '"  *'"'  adoption  of  the  following 

Rules  on  the  Definition  and  RioiME  op  the 

Terbitobial  Sea* 
The  Institute, 

Considering  that  there  is  no  reason  to  confound  in  a 
single  zone  the  distance  necessary  for  the  exercise  of  sover- 
eignty  and  for  the  protection  of  coastwise  fishing  and  that 
which  IS  necessary  to  guarantee  the  neutrality  of  non-bellig- 
erents in  time  of  war; 

That  the  distance  most  generally  adopted  of  three  miles 
from  low-water  mark  has  been  recognized  as  insufficient  for 
the  protection  of  coastwise  fishing; 

That  this  distance  moreover  does  not  correspond  to  the 
actual  range  of  guns  placed  on  the  coast; 
JIas  adopted  the  following  provisions: 


'  Ibid.,  vol.  90,  p.  S41. 

*lbid.,  vol.  II,  p.  133. 

'  Ibid.,  p.  13«. 

*  Ibid.,  pp.  U7  «(  t*q. 

'Ibid.,  voL  1»,  pp.  104,  13«.  I4i,  iji. 


•Ibid.,  pp.  14a  tt  uq. 
'  Ibid.,  voL  IS,  p.  195. 

•  Ibid.,  pp.  291  (t  I0q. 

*  Ibid.,  p.  338. 


]i 


114    RetdutWM  of  the  Institute  of  International  Law 

Abticle  1.  The  State  has  a  right  of  sovereignty  over  a 
zone  of  the  sea  washing  the  coast,  subject  to  the  right  of 
innocent  passage  reserved  in  Article  5. 

This  zone  bears  the  name  of  territorial  sea. 

Article  2.  The  territorial  sea  extends  six  marine  miles 
(60  to  a  degree  of  latitude)  from  the  low-water  mark  along 
the  full  extent  of  the  coasts. 

Article  8.  For  bays,  the  territorial  sea  follows  the  sinu- 
osities of  the  coast,  except  that  it  is  measured  from  a  straight 
line  drawn  across  the  bay  at  the  place  nearest  the  opening 
toward  the  sea  where  the  distance  between  the  two  sides  of 
the  bay  is  twelve  marine  miles  in  width,  unless  a  continued 
usage  of  long  standing  has  sanctioned  a  greater  breadth. 

Abticle  4.  In  case  of  war  a  neutral  littoral  State  has 
the  right  to  fix,  by  declaration  of  neutrality  or  by  special 
notification,  its  neutral  zone  beyond  six  miles  up  to  the  range 
of  coast  artillery. 

Abticle  5.  All  ships  without  distinction  have  the  right 
of  innocent  passage  through  the  territorial  sea,  saving  to 
belligerents  the  right  of  regulating  such  passage  and,  for  the 
purpose  of  defense,  of  forbidding  it  to  any  ship,  and  saving 
to  neutrals  the  right  of  regulating  the  passage  of  ships  of 
war  of  all  nationalities  through  the  said  sea. 

Abticle  6.  Crimes  and  offenses  committed  on  board 
foreign  ships  passing  through  the  territorial  sea  by  persons 
on  board  of  them,  against  persons  or  things  on  board  the 
same  ships,  are  as  such  outside  the  jurisdiction  of  the  littoral 
State,  unless  they  involve  a  violation  of  the  rights  or  interests 
of  the  littoral  State  or  of  its  ressortistanta  not  forming  part 
of  the  crew  or  passengers. 

Abticle  7.  Ships  which  pass  through  territorial  waters 
shall  conform  to  the  special  regulations  decreed  by  tlie  littoral 
Slate  in  the  interest  and  for  the  security  of  navigation  or  as 
matter  of  maritime  police. 

Articix  8.  Ships  of  all  nationalities  are  subject  to  the 
jurisdiction  of  the  littoral  State  by  reason  of  the  simple 
fact  that  they  are  in  the  territorial  waters,  unless  they  are 
only  passing  through  them. 


Territorial  Waters  im 

The  littoral  State  has  the  right  to  continue  on  the  hiirh 
sea  a  pursuit  commenced  in  the  territorial  sea,  and  to  seL 
and  pass  judgment  on  the  ship  which  has  committed  a 
breach  of  law  withm  its  waters.  In  case,  however,  of  cap- 
tm-e  on  the  high  sea  the  fact  shall  be  notified  without  delay 
to  the  State  whose  flag  the  ship  flies.  The  pursuit  must  be 
interrupted  as  soon  as  the  ship  enters  the  territorial  sea  of 
Its  own  country  or  of  a  third  Power.  The  right  to  pursue 
ceases  as  soon  as  the  ship  has  entered  a  port  of  its  own  coun- 
try  or  of  a  third  Power. 

ARTICLE  9.  The  peculiar  situation  of  ships  of  war  and 
the  ships  assimilated  to  them  is  reserved. 

ARTICI.E  10.  The  provisions  of  the  preceding  articles 
apply  to  straits  whose  breadth  does  not  exceed  twelve  miles, 
subject  to  the  following  modifications  and  distinctions : 

1.  btraits  whose  shores  belong  to  different  States  form 
part  of  the  territorial  sea  of  the  littoral  States,  which  wiU 
exercise  theu-  sovereignty  to  the  middle  line. 

2  Straits  whose  shores  belong  to  the  same  State  and 
which  are  indispensable  to  maritime  communication  between 
two  or  more  States  other  than  the  littoral  State  always  form 
part  of  the  territorial  sea  of  such  State,  whatever  the  distance 
between  the  coasts. 

8.  Straits  which  serve  as  a  passage  from  one  open  sea 
to  another  open  sea  can  never  be  closed. 

Ahticle  11.  The  rigime  of  straits  actually  governed  by 
special  conventions  or  usages  remains  reserved. 


PROTECTION  OF  LITERARY  AND  ARTISTIC 
PROPERTY-REVISION  OF  THE  CONVEN- 
TION OF  BERNE • 

The  question  was  entered  on  the  program  at  the  meetin*  at  H.m- 
burg  .n  1891.  on  the  motion  of  Mr.  dOuC  who  wasapTo  S  repSer 

'•  "°^"'  """''«=  *  preliminary  sUtement.'    At  the  Cambridge  m-eting  in 
■  Annuair»,  ,ol.  20.  p.  366.  .  /ty.,  ^„,    ,3^  ^   ^ 


M 


116    ReaolutUms  of  the  Institute  of  International  Lata 

1899,  Meura.  Roguin  and  Renault  presented  a  report.^  The  diicussion 
in  plenary  sesaion  took  place  April  10,  12  and  14,  1899-  It  reiolted  in 
the  following  resolutions: ' 

The  Institute  of  International  Law  has  the  honor  to  rec- 
ommend the  following  changes  to  the  next  diplomatic  con- 
ference entrusted  with  the  revision  of  the  Convention  of 
Berne  of  September  9, 18P9,  creating  an  International  Union 
for  the  protection  of  wor»£s  of  literature  and  art. 

Article  2.  Paragraph  2  to  read  as  follows:  "  The  en- 
jojrment  of  these  rights  and  the  power  to  enforce  them  under 
the  law  shall  be  subject  only  to  the  fulfilment  of  the  condi- 
tions and  formalities  prescribed  by  the  legislation  of  the 
country  where  the  work  originates." 

The  second  part  of  paragraph  8  to  be  omitted  from  the 
words  "  or  if  the  publication  shall  have  been  simultaneously 
effected  in  several  coun  ries  of  the  Union,  that  one  of  them 
whose  legislation  grants  the  shortest  term  of  protection." 
Thus,  the  duration  of  the  period  of  protection  shall  be  al- 
ways that  provided  by  law  in  the  country  where  protection 
is  claimed. 

Article  5.  To  increase  from  ten  to  twenty  years  the 
minimum  duration  of  the  period  of  protection  for  trans- 
lations. 

Article  7.  To  insert  in  the  text  itself  of  the  convention 
the  explanation  of  the  proch-verbal  declaring  that  the  pro- 
vision of  the  first  paragraph  of  Article  7  shall  apply  only  to 
writings  on  the  politics  of  the  day,  and  not  to  essays  or 
studies  treating  of  questions  of  politics  or  social  economics  of 
a  more  general  import,  these  last  remaining  subject  to  com- 
mon law. 

To  say  expressly  that  articles  of  science  and  art  are  sub- 
ject to  the  rule  of  Article  7,  paragraph  1,  of  the  convention 
of  1886. 

To  state  expressly  that  romans-feuilletons  are  subject  to 
the  same  rules  as  literary  works  published  in  volumes. 

To  enact  expressly  that  political  articles,  news  of  the  daif 


*Annmurt,  vol.  14,  p.  93. 


» Ibid.,  p.  287. 


Literary  and  Artistic  Property  117 

and  miscellaneous  news  items  may  be  reprinted  on  the  sole 
condition  that  the  exact  source  be  stated. 

Article  9.'  To  word  paragraph  8* as  follows:  "The 
stipulations  of  Article  2  likewise  apply  to  the  public  per- 
formance of  unpubUshed  musical  works  or  of  published 
works,  mthout  its  being  necessary  for  the  composer  to  state 
expressly  on  the  title-page  or  at  the  beginning  of  the  work 
tnat  he  forbids  the  public  performance  of  it,  subject  to  the 
provisions  of  the  law  of  the  country  whence  it  emanates  " 

Aeticle  10.'   To  omit  the  second  paragraph. 

In  the  first  paragraph,  to  add  after  .  .  .  adaptation 
...  the  words:  dramatization  of  a  novel  or  vice  versa. 

To  add  a  final  paragraph,  worded  thus: 

"The  public  performance  of  musical  compositions  by 
mechamcal  instruments  shaU  be  governed  by  the  same  rules 
as  public  performance  by  any  other  means." 

Article  14.  To  insert  a  provision  to  allow,  within 
strictly  determined  time-limits,  the  sale  of  reproductions 
finished  or  m  preparation  before  the  treaty  goes  into  effect. 
To  this  end  they  shall  bear  stamps  or  other  distinctive  marks. 

To  insert  in  the  convention  a  provision  forbidding  the 
reproduction  by  photography  of  a  protected  work  of  litera- 
ture or  art. 


PENAL    SANCTION   TO    BE    GIVEN    TO    THE 
GENEVA  CONVENTION  OF  AUGUST  22, 1864 ' 

.coT*"  ^""***"'  ^•»  «''te«d  »"  the  program  at  the  meeting  at  Paria  in 
1894,  on  the  motion  of  Mr.  Moynier,  who,  with  Mr.  Engclhardt,  was 
f^F  iL'''^!'"-  ^*  ^"^  Cambridge  meeting  in  1893,  Messrs.  Moynier 
and  Engelhardt  presented  their  report  together  with  a  draft  convention 
supplementary  to  the  Geneva  Convention  and  a  draft  resoluUon.*  To 
these  Mr.  Engelhardt  added  a  further  note.* 


For  the  circumstances  under  which  Articles  9  and 
An«ua,r,,  vol.  14.  ,,.  m.  Fifteen  members  having  desired 
Of  these  articles,  their  names  were  entered  in  the  minutes 
wn  Bar,  Barclay,  den  Beer  Poortugacl.  Bu««,ti.  Catellani, 
Kapouslme.  I^mmasch.  Martens,  Matren.  Montluc,  Reay. 
Westlakr.  The  following  were  absent  nt  the  time  of  the 
Goudy  Uwrence.  Leech.  RoUn-Jaequemyns  and  Sacerdoti. 

Ibtd.,  vol.  20,  p.  361.  •  Ibid.,  vol.  14,  p.  17. 


10  were  passed,  see 
to  make  reservations 
They  were  Messrs. 
Harburger,  Holland, 
Edouard  Rolin  and 
votej    Messrs.  Baker, 

•/fc.W .  n.  iro. 


i'4 


118    Retolutioru  of  the  Institute  of  International  Law 


The  diwiusion  in  plenary  session  took  place  August  9  *nd  18,  1893.' 
It  resulted  in  the  adoption  of  the  following  resolutions: 

I.— Draft  Convention  Supplementary  to  the  Conven- 
tion OF  August  22,  1864* 

The  Governments  of desiring  mutually  to  bear  wit- 
ness to  their  earnest  desire  to  assure  the  observance  of  the 
Geneva  Convention  of  August  22, 1864,  by  the  persons  and 
within  the  territories  subject  to  their  authority,  have  agreed 
upon  the  following  articles: 

Article  1.  Each  of  the  contracting  Parties  shall  under- 
take to  elaborate  a  penal  law  covering  all  possible  infractions 
of  the  Geneva  Convention. 

Article  2.  Within  a  period  of  three  years,  these  laws 
shall  be  promulgated  and  notified  to  the  Swiss  Federal  Coun- 
cil, which  shall  commimicate  them  through  diplomatic  chan- 
nels to  the  signatory  Powers  of  the  Geneva  Convention. 

The  changes  which  any  of  the  contracting  States  shall 
later  make  in  its  penal  code  shall  also  be  notified  to  the 
Swiss  Federal  Council. 

Article  8.  A  belligerent  State  which  shall  make  com- 
plaint of  a  violation  of  the  Geneva  Convention  by  the 
resiorimants  of  another  belligerent  State  shall  have  the 
right  to  request,  through  the  mediation  of  a  neutral  State, 
that  an  inquiry  be  instituted.  The  accused  State  shall  be 
obliged  to  have  its  authorities  institute  this  inquiry,  to  make 
known  the  result  to  the  neutral  State  which  has  acted  as 
intermediary,  and,  if  necessary,  to  cause  the  guilty  to  be 
punished  under  the  criminal  laws. 

Article  4.  The  States  signatory  to  the  Geneva  Conven- 
tion which  shall  not  have  subscribed  in  the  first  instance  to  the 
present  act,  may  do  so  at  any  time  by  a  notification  in  the 
form  prescribed  for  adhering  to  the  Convention  itself,  ad- 
dressed to  all  the  States  that  are  already  signatories. 


*  Anmwiirt,  toL  14,  p.  174. 


'  IMd.,  p.  188. 


Penal  Sanction  for  the  Geneva  Convention 


119 


Il.—FasD  Uttered  by  the  Institute 

In  order  to  give  to  a  belligerent  State  whose  ressortitsants 
rJT^  i  having  violated  the  Geneva  Convention  e^er. 
IZ^S:  ^rT  '*'  •"^P^rti'^J'ty  and  the  innoeence  of  S 
Ztttthei"'*'*"*'"'  International  Law  utters  the 
voeu  that  the  Powers  signatory  to  the  Geneva  Convention 
reeognize  the  existence  and  the  authority  of  an Inte" 
national  Red  Cross  committee,  whose  memLs  may  at  the 
^uest  of  the  accused  belligerent  State,  be  delega£l  L  it 
to  take  part  m  an  inquiry  at  the  seat  of  war,  Sr  the 
auspices  of  the  competent  national  authorities 


DIPLOMATIC  IMMUNITIES » 

h«d1*  Sh^fn^n'r  'I""""'  '"  '***'  *•"  *»"=  ""o"""  °f  Mew,..  Engel- 

sr«e:"  "^"'"-"^  ^™^"-'  -'^'-  BnUtar  on-rr 

piaic  ocpiemoer  i,  1894,  the  Institute  adopted  the  fferu^ral  r.*;n,.i»i> 
"lat  T!?-"'"  """'"""»  'nviolabihty.*  AtEeetinra^^^.Tb^^ 
it  I!?,U  i-  ••"/="'"':«'"  ''«''  '"""ned  in  the  session,  of  AugSst  1 2  a"  d  1 3  • 
It  resulted  u,  the  adoption  on  the  latter  date  of  the  following  regulations: 

Regulations  on  Diplomatic  Immunities  Adopted  by  the 

INSTITUTE  AT  THE  SESSION  OF  AUGUST  18,   1895  « 

vin]tM'''''^u'   ^''t.P^"°"'  ''^  P"^''^  ministers  shall  be  in- 
violable.   They  shall  enjoy,  in  addition.  "  exterritoriality." 
n  the  sense  and  to  the  degree  indicated  hereafter,  and  a  <ir- 
tam  number  of  immunities. 


'  Ibid.,  vol  90,  p.  348. 
•  See  pott,  p.  123. 
'^nimairt,  vol.  11,  p.  395. 


•  Ibid.,  p.  404. 

•Ibid.,  vol.  U,  p.  808. 

•Ibid,,  p.  840. 


120 


Reaolutiofu  of  the  Institute  of  International  Law 


'?1    ^' 


Section  I.— Inviolability 

Abticle  2.    The  privilege  of  inviolabUity  is  extended  to: 

1.  All  classes  of  public  ministers  who  regularly  represent 
their  sovereign  or  their  country; 

2.  All  persons  included  in  the  official  personnel  of  a 
diplomatic  mission; 

8.  All  persons  included  in  its  unofficial  personnel,  with 
this  exception,  that  if  they  belong  to  the  country  where  the 
mission  is  located,  they  shall  enjoy  this  privilege  only  when 
in  the  diplomatic  residence.  _  . 

Article  8.  The  government  to  which  the  minister  is 
accredited  shall  be  required  to  refrain  from  all  offense  in- 
jury, or  violence  toward  the  persons  enjoying  this  privilege, 
to  show  them  due  respect  and  to  protect  them,  by  unusually 
severe  penalties,  from  all  offense,  injury,  or  violence  on  the 
part  of  the  inhabitants  of  the  country,  so  that  they  may  at- 
tend to  all  their  duties  with  perfect  freedom. 

Article  4.  This  privilege  shall  apply  to  everything  nee- 
essary  to  the  accomplishment  of  the  said  duties;  especially  to 
personal  effects,  papers,  archives,  and  correspondence. 

Article  5.  It  shall  continue  to  be  effective  as  long  as 
the  minister  or  diplomatic  official  remains,  in  his  official  ca- 
pacity, in  the  country  to  which  he  has  been  sent. 

It  shall  hold  good,  even  in  time  of  war  between  the  two 
Powers,  for  as  long  a  time  as  is  necessary  for  the  mimster  to 
leave  the  country  with  his  staff  and  his  effects. 

Article  6.    Inviolability  may  not  be  invoked : 

1  In  the  case  of  lawful  defense  on  the  part  of  individuals 
against  acts  committed  by  persons  who  enjoy  the  privilege: 

2.    In  case  of  risks  run  by  the  -a'd  persons,  voluntarily 

or  unnecessarily;  ...  , .     .i „„, 

8  In  case  of  reprehensible  acts  committed  by  them,  com- 
pelling the  State  to  which  the  minister  is  accredited  to  take 
defensive  or  precautionary  measures;  but,  except  in  cases  ot 
extreme  neces..ty,  this  State  must  confine  itself  to  making 
the  facts  known  to  the  government  of  the  said  minister,  to 
requesting  the  punishment  or  the  recall  of  the  guilty  offic.aK 


?n  % 


Diplomatic  Immunitiei 


121 


and,  if  necessary,  to  surrounding  his  house  to  prevent  illegal 
communications  or  public  expressions  of  opinion. 


Section  II. — ExTEHBrroHiALrry 

Ahticle  7.  A  public  minister  abroad,  functionaries  offi- 
cially connected  with  his  mission,  and  the  members  of  their 
families  living  with  them  shall  retain  their  original  residence 
and  remain  subject  to  the  laws  of  this  residence  in  so  far  as 
the  laws  and  jurisdiction  of  the  residence  apply. 

Succession  to  their  estate  is  governed  by  the  laws  of  the 
said  residence,  and  local  authorities  shall  not  have  the  right 
to  interfere,  unless  so  requested  by  the  head  of  the  mission. 

Article  8.  The  acts  which  a  public  minister  or  his  rep- 
resentative performs  personally,  or  in  which  he  intervenes 
in  his  official  capacity  and  according  to  the  law  of  his  country, 
with  regard  to  his  nationals,  shall  be  valid,  provided  that  the 
said  law  shall  have  been  observed,  and  notwithstanding  the 
lex  loci,  as  would  be  the  case  with  acts  of  the  same  kind  per- 
formed or  occurring  in  the  minister's  own  country. 

Acts  in  which  the  minister  or  his  representative  inter- 
venes, even  in  his  official  capacity,  shall  conform  to  the  lex 
loci:  1.  If  they  concern  a  person  who  does  not  belong  to  the 
country  which  the  minister  represents  or  who,  for  some  rea- 
son, is  subject  to  the  jurisdiction  of  the  country;  2.  If  they 
are  to  be  effective  in  the  country  where  the  mission  is  sta- 
tioned, and  are  such  that  they  could  not  be  validly  per- 
formed outside  the  country  or  in  any  other  manner.  The 
same  law  governs  the  acts  done  in  the  diplomatic  residence, 
but  in  which  the  minister  or  his  agents  are  not  entitled  to 
intervene  in  their  official  capacities. 

Article  9.  The  minister's  residence  is  exempt  from 
military  quarterings  and  from  the  taxes  which  are  sub- 
stituted therefor. 

No  officer  of  the  public  authority,  administrative  or  judi- 
cial, may  enter  therein  in  the  performance  of  his  duty  except 
with  the  express  consent  of  the  minister. 

Article  10.    The  minister  may  have  a  chapel  of  his 


128    Beiolution$  of  the  Inttitute  of  International  Law 

own  religion  in  his  house,  but  upon  condition  that  he  re- 
frain from  all  external  manifestation  of  it  in  a  country 
where  the  public  exercise  of  that  religion  is  not  permitted. 

Section  III 

A. — Tax  Immunitiet 

AiTiCLE  11.   A  public  minister  abroad,  the  functionaries 

officially  connected  with  his  mission  and  the  members  of 

their  families  living  with  them  shall  be  exempt  from  paying: 

1.  Direct  personal  taxes  and  sumptuary  taxes; 

2.  General  taxes  on  wealth,  either  on  the  principal  or  on 

the  income; 

8.    War-taxes; 

4.    Customs  duties  on  articles  for  their  personal  use. 

Each  government  shall  have  the  right  to  indicate  what 
proofs  are  required  in  order  to  secure  these  exemptions  from 
taxes. 

B.— Legal  Immunities 

Akticle  12.  A  public  minister  abroad,  the  functionaries 
officially  connected  with  his  mission  and  the  members  of  their 
families  living  with  them  are  exempt  from  the  jurisdiction 
of  all  courts,  civil  or  criminal,  of  the  State  to  which  they 
are  accredited;  in  principle,  they  shall  be  under  the  juris- 
diction, civil  or  criminal,  only  of  the  courts  of  their  own 
country.  The  plaintiff  may  appeal  to  the  court  in  the 
capital  of  the  minister's  country,  subject  to  the  right  of 
the  minister  to  prove  that  he  has  another  residence  in  his 

country. 

Article  18.  With  regard  to  crimes,  the  persons  men- 
tioned in  the  preceding  article  shall  remain  subject  to  their 
national  criminal  lavr,  as  if  the  crimes  had  been  committed 
in  their  own  country. 

Aetici.e  14.  Immunity  continues  after  retirement  from 
office  in  so  far  as  acts  connected  with  the  exercise  of  the 
said  duties  are  conctrned.    As  regards  acts  not  connected 


Diplomatic  Immunitiet 


128 


therewith*  immunity  may  not  be  claimed  except  for  so  long 
"^  the  individual  remains  in  office. 

Abticlk  15.  Persons  belonging  by  their  nationality  to 
the  country  to  whose  government  they  are  accredited,  may 
not  take  advantage  of  the  benefits  of  inununity. 

AsTiCLE  16.    Legal  immunity  may  not  be  invoked: 

1.  In  case  of  proceedings  in  tituted  as  a  result  of  en- 
gagements contracted  by  the  exempt  person,  not  in  his  offi- 
cial capacity,  but  in  the  exercise  of  a  profession  carried  on 
by  him  in  the  country  concurrently  with  his  diplomatic 
duties; 

2.  With  regard  to  renlty  actions,  including  possessory 
actions  relating  to  property,  real  or  personal,  which  is  in 
the  country. 

Legal  immunity  remains  effective  even  in  case  of  offenses 
endangering  pubhc  order  or  safety  or  of  a  crime  attacking 
the  safety  of  the  State,  without  prejudice  to  the  right  of  the 
territorial  government  to  take  such  conservatory  measures 
as  shall  be  deemed  advisable  (Article  0,  Section  8). 

Abticle  17.  Persons  enjoying  legal  immunity  may 
refuse  to  appear  as  witnesses  before  a  territorial 
court,  on  condition  that,  if  they  are  so  requested  through 
diplomatic  channels,  they  shall  give  their  testimony,  in  the 
diplomatic  residence,  to  a  magistrate  of  the  country  sent 
to  them  for  that  purpose. 


i 


m 


CONSULAR  IMMUNITIES ' 

At  the  meeting  at  Lauianne  in  1888,  on  the  motion  of  Mesirj. 
Migclhnrdt,  Lehr  and  Rolin-Jaequemyns,  the  qucsUon  of  diplomntic 
and  consular  immunities  was  entered  on  the  program.  Mr.  Engel- 
hardt,  having  been  appointed  reporter  on  the  question  of  con- 
sular immunities,  made  at  the  time  of  the  session  of  Lausanne  in  1888 
a  communication  aceompanied  by  proposals  concerning  consular  archives.' 
At  the  session  of  Hamburg  in  1891  he  communicated  to  the  Institute  three 

'  Annuairt,  toI.  ao,  pp.  348,  353.    See  antt,  p.  119. 
'W  »»««>«.  vol.   10,  p.  V74. 


124    Resolutions  of  the  Institute  of  Intemationtd  Law 

memoin.'  At  the  OencT.  Muion  in  HW  •  fourth  memiAt  wm  com- 
municatrd  by  him.*  At  the  Venice  seiiion  in  1896  he  m«de  «  new  re- 
port •ccompanied  by  draft  reguUtioni.'  The  dltcuwion  in  plenary  fM.ion 
took  place  September  «9  and  «6  •  and  reioltcd  In  the  adoption  on  the 
Utter  date  of  the  following  resolutions:  * 


Pbxuminaiy  Past 

Abticle  1.  The  title  of  consul  belongs  only  to  agents  of 
the  foreign  service  who,  being  ressortissants  of  the  State  they 
represent,  exercise  no  functions  other  than  those  of  consul 
(conw,les  mitsi) . 

Hereafter  the  following  shall  be  designated  consular 

agents: 

(a)  Consuls  who  are  nationals,  that  is  ressortissants  of 
the  sending  State,  but  who  exercise  other  functions  or  have 
some  other  calling; 

(6)  Consuls  who  by  nationality  belong  either  to  the 
State  in  which  they  are  conunissioned  or  to  some  State  other 
than  the  sending  State,  without  regard  to  whether  they  ex- 
ercise or  do  not  exercise  other  functions  or  callings. 

Abticle  2.  Consuls  and  consular  agents  are  subject  to 
the  territorial  laws  and  jurisdiction,  save  for  the  exceptions 
specified  under  Parts  I  and  II  belo... 

Article  8.  To  entitle  consuls  or  consular  agents  to  be 
admitted  and  recognized  as  such,  they  must  present  their 
commissions,  on  the  production  of  which  they  will  receive  the 

exequatur. 

On  the  presentation  of  the  exequatur,  the  superior 
authority  of  the  district  in  which  the  said  agents  are  directeil 
to  reside  will  give  the  necessary  orders  to  the  other  local 
authorities  in  order  that  they  may  be  protected  in  the  exer- 
cise of  their  functions  and  that  the  immunities,  exemptions, 
and  privileges  conferred  by  these  regulations  may  be  guar- 
anteed to  them. 


« /<iiiiiiair#,  to!.  U,  p.  3*8. 

•  Ibid.,  vol.  W,  p.  31 S. 

•  Ibid.,  Tol.  14,  pp.  133.  140. 


•  Ibid.,  p.  9TS. 
'Ibid.,  p.  304. 


,1- 


■^    .   1 


I 


Connlar  Immumtie*  12s 

In  cose  the  territorial  government  should  deem  it  advis- 
able to  withdraw  the  exequatur  from  a  consul,  it  should  pre- 
viously so  inform  the  government  to  which  the  consul  be- 
longs. 


a  pill 


1!  ; 


■  IS     o   h 

th      irt  .  t 
'^'i  addrt'.i 


Past  I.— Consuls 

Amticle  4.  Consuls  enjoy  personal  \mr  .ity  under  the 
conditions  and  within  the  limits  specific'?  .  ,  Jes  a,  tJ,  7 
and  8,  below. 

AtTiCLE  5.    They  are  not  amenaJ'     to  „„ 
for  acts  which  they  perform  in  thfii      ri    a  I 
within  the  limits  of  their  powers.      ; '     i    . .  . 
rule  should  be  provided  and  defii,  > :    ,    i  <,   ' 

If  an  individual  considers  bins    '•  iii  j      <    r 
a  consul  done  in  the  discharge  of        !•  tL 
his  complaint  to  the  territorial  govei)uii> '.     v>  >    j 
it  up,  if  there  is  reason  to  do  so,  thrunrh  tlio  d  •    .;n  tic 
channel.  ' 

Abticle  6.  Except  as  specified  in  Artitit  c  aUve,  con- 
suls are  amenable  to  the  courts  of  the  country  in  which  they 
exercise  their  functions  as  regards  both  civil  and  criminal 
matters. 

Nevertheless,  every  proceeding  directed  against  a  consul 
is  suspended  until  his  government,  duly  notified  through  the 
diplomatic  channel,  has  been  able  to  confer  with  the  govern- 
ment of  the  receiving  State  on  a  fitting  settlement  of  the 
incident. 

This  previous  notice  is  not  necessary: 

1.  In  case  of  a  flagrant  offense  or  of  a  crime; 

2.  In  suits  in  rem,  including  suits  for  possession,  whether 
relating  to  personal  property  or  to  real  estate  situated  in  the 
country; 

8.  When  the  consul  himself  has  begun  the  litigation 
or  accepted  suit  in  the  local  courts, 

Abticle  7.  In  no  case  may  consuls  be  arrested  or  de- 
tained, except  for  grave  infractions  of  the  law. 

ASTiCLE  8.    They  are  not  bound  to  appear  as  witnesses 


II 


I 

uf.u 
■J? 


1  ■ 


126    Beadutiotu  of  the  Institute  of  International  Law 

before  the  local  tribunals.  Their  testimony  should  be  taken 
at  their  residence  by  a  magistrate  appointed  ad  hoc. 

In  exceptional  cases,  where  the  appearance  of  the  cot.^ul 
in  person  before  the  magistrate  exercising  civil  or  cnmmal 
jurisdiction  is  deemed  indispensable  and  the  consul  refuses  to 
accede  to  the  invitation  addressed  to  him  to  appear  before 
the  competent  judge,  the  territorial  government  should  have 
recourse  to  the  diplomatic  channel. 

Article  9.  The  official  residence  of  consuls  and  the 
premises  occupied  by  their  office  and  archives  are  inviolable. 

No  administrative  or  judicial  officer  may  mvade  theiu 
under  any  pretext  whatsoever. 

If  a  fugitive  from  justice  take*  refuge  m  the  consulate, 
the  consul  is  bound  to  hand  him  over  on  the  simple  demand 

of  the  authorities.  ^l    •■  i 

Abticle  10.  In  order  especially  to  ensure  the  mviola- 
bility  of  the  consular  archives,  the  foreign  agent  shall  trans- 
mit through  the  medium  of  the  diplomatic  mission  to  the 
authorities  of  the  country  a  statement  describing  the  several 
premises  composing  the  office  of  the  consulate.  Tins  should 
be  done  at  the  time  the  consul  enters  upon  his  duties  and 
whenever  the  office  is  transferred  from  one  building  to 
another  or  any  important  change  is  made  in  the  rrange- 
ment  of  the  office. 

The  above-mentioned  statement  shall  be  verihed  each 

time  bv  the  receiving  State. 

Article  11.  Consuls  should  refrain  from  placing  in  the 
archives  and  in  the  rooms  of  their  office  documents  and 
objects  not  connected  with  their  service. 

The  offices  of  the  consuiate,  if  distinct  from  the  rooms 
serving  as  the  abode  of  the  consul,  may  be  installed  in  the 

same  building.  .     •    i-  •  i 

Article  12.  If  the  consul,  when  ordered  by  the  judicial 
authority  to  hand  over  documents  in  his  possession,  refuses 
to  deliver  them,  the  administrative  authority  shall  have  re- 
course to  the  territorial  government,  which  will  take  the 
matter  up,  if  there  be  occasion,  through  the  diplomatic 
channel. 


tc'imlar  Immunitiet 


127 


Akticle  18.  Consuls  are  excused  from  paying:  (1) 
direct  personal  taxes  and  sumptuary  taxes;  (2)  general 
taxes  on  wealth,  either  on  capital  or  income;  (8)  war  taxes. 

Abticle  14.  Consuls  may  place  above  the  outer  door  of 
the  consulate  the  arms  of  their  country,  with  the  inscription: 
"  Consulate  of ."  *^ 

They  may  display  the  flag  of  their  country  upon  the  con- 
sular  bujldmg  on  public  occasions  unless  they  reside  in  the 
city  where  their  government  is  represented  by  a  diplomatic 
mission. 

They  are  likewise  authorized  to  raise  this  flag  upon  the 
boat  they  use  in  the  exercise  of  their  functions. 

Articij!  15.  Consuls  are  permitted  to  correspond  with 
their  government  and  with  the  pohtical  mission  of  their  coun- 
try by  telegraphic  dispatches  in  cipher  or  by  means  of  mes- 
sengers provided  with  a  passport  nd  hoc. 

It  is  likewise  permissible  for  them  to  entrust  their  official 
correspondence  to  the  captains  of  vessels  of  their  nationality 
at  anchor  in  the  port  of  their  residence. 

In  case  of  an  epidemic,  the  disinfection  of  letters  in- 
tended for  consuls  takes  place  in  the  presence  of  a  consular 
delegate. 

Article  16.  In  case  of  the  decease  or  the  unlooked-for 
disability  of  the  consul,  the  consular  officer  of  next  highest 
rank  shall  be  deemed  to  have  the  right  to  carry  on  the  busi- 
ness of  the  consulate,  on  condition  that  he  produce  in  due 
time  before  the  local  authority  the  cfficial  document  con- 
tinning  him  in  his  provisional  incumbency. 

To  this  end  it  is  the  duty  of  the  consul  to  present  to  the 
local  authority  the  officer  designated  contingently  to  replace 
him  ad  inUrim. 

This  officer  shall,  during  his  incumlwncy,  enjoy  the  im- 
munities and  privileges  accorded  to  consuls  by  these  regula- 
tions. 

Articu:  17.  There  is  no  distinction,  as  regards  immuni- 
ties, l)ctween  consuls  general,  consuls  and  vice  consuls. 

It  is  understood  that  agents  of  this  last  category,  in  so 
far  as  they  are  in  charge  of  vice  consulates,  must  satisfy  the 


128    Re$oHtioM  of  the  Itutitute  of  Intemational  Law 

conditions  as  to  nationality  and  the  other  conditions  men- 
tioned in  the  first  paragraph  of  Article  1  of  these  regu- 

lations. 

In  official  ceremonies  to  which  they  are  invited,  consuls 
general,  consuls  and  vice  consuls  take  precedence  according 
to  their  rank,  and  in  each  rank,  according  to  the  date  of  their 
entrance  upon  the  discharge  of  their  functions. 

Part  II. — Consulae  Agents 

Article  18.  When  civil  or  criminal  suits  are  brought 
against  consular  agents,  the  local  courts  shall  be  competent 
to  take  cognizance  of  them  directly,  unless  it  be  established 
that  the  said  agents  have  acted  in  their  official  capacity. 

Article  19.  Consular  agents  are  exempt  from  taxes 
falling  specially  on  the  building  or  part  of  the  building; 
occupied  by  their  consular  office. 

With  this  exception,  they  pay  both  national  and  local 

Article  20.  Articles  10.  11  paragraph  1,  12  and  i  i 
apply  to  consular  agents,  with  this  difference  as  regards 
Article  U.  that  the  coat  of  arms  placed  over  the  outer  <\oor 
of  their  office  shall  bear  the  inscription:  "  Consular  Agency 

of ."  .       , .  , 

The  office  of  consular  agents,  includmg  the  place  m  wlucJi 

their  archives  are  kept,  must  always  be  separate  from  tli.  ii 

personal  business  offices. 

Article  21.    Consular  agents  may  correspond  directly. 

upon  official  business,  with  the  administrative  and  judicial 

authorities  of  their  respective  districts. 

V(Kr  Adopted  by  the  Instftute  in  the  Same  Sessiom 
The  Institute,  having  adopted  the  Regulations  on  im- 
munities of  consuls,  expresses  the  wish  that  governments 
whose  functionaries  may  be  benefited  by  them  will  exercise 
the  greatest  care  in  the  choice  of  such  functionaries,  to  tht 
end  tliat  they  may  be  worthy  in  all  respects  of  the  immunities 
al>ove  specified. 


Intemational  Regulation  of  Contraband  of  War    129 

INTERNATIONAL  REGULATION  OF  CONTRA 
BAND  OF  WAR ' 

The  qnestion  was  entered  on  the  program  at  the  m..#.fin.  .»  n-— 
in  1892  on  the  motion  of  Mr.  Kleen  who  with  M,   n  ""'"'«  •»  Gen*** 

.].o    „jd,    .    „p„«    ,1,1,    0,0    »,„.d,.tt    „,    ll,/oo„mit3     A 

Sir'"  ''■  ■•^™"^ » -.^rr  j.;.ir:?.r,r"S 


A. — Contraband 

Section  1  The  following  articles  are  contraband  of 
war.  1.  arms  of  all  kinds;  2.  munitions  of  war  and  explo- 
Mves;  8.  military  materiel  (articles  of  equipment.  iAm- 
niountings,  uniforms,  etc.) ;  4.  vessels  fitted  out  for  war- 
o.  instruments  designed  exclu..vtl,  for  the  immediat^ 
nmnufacture  of  munitions  of  war;  when  these  various  arti- 

to  a  ;Sig?rT  '  "'  '"  *'^  '^""""*  ""'  ^'^  '^^^-^-^ 

(.oes^tonnrr^f '*'"''*'''!'  ''  P'*""'""^  ^''^^  *he  shipment 
«')es  to  one  of  the  enemy's  ports,  or  to  a  neutral  port  which. 

ac  ordmg  to  incontestable  pro<,fs  and  indisputable  facts,  is 
only  an  intervening  point,  with  ultimate  enemy  destination 
»i  the  same  commercial  transaction. 
I  f^F^^^^  2.    In  the  term  munitions  of  war  shall  be  in- 

fXirti""'"''' :°  '*."»«'  """"y  i" »"  nl  o,s^ 

to  be  assembled  or  combined. 

Section  8    An  article  shall  not  be  considered  contra- 
bandjiniply  because  it  is  intended  to  l>e  used  to  aid  or  to 


'Anuuaire,  vol.  90,  p.  374. 
'  " '-' .  vol.  I.S,  pp.  50,  67,  75, 
'''"<*.,  vol.   U,  pp.  :rj,  M,  5H. 


'  Ihid.,  vol,   15,  p.  99. 
'Ibid.,  p,  i05. 
'Ibid.,  p,  830. 


180    RetolutioM  of  the  Institute  of  International  Law 

favor  an  enemy,  nor  because  it  could  be  useful  to  an  enemy 
or  used  by  him  for  military  purposes,  nor  because  it  is  meant 

for  his  use.  .^  ,.  .   j  xu 

Section  4.  Are  and  shall  remam  abolished  those  so- 
called  clesses  of  contraband  designated  under  the  names, 
either  of  conditional  contraband,  articles  (tuus  anapUts) 
which  may  be  used  by  a  belligerent  for  military  purposes, 
but  the  use  of  which  is  essentially  peaceful,  or  of  accidental 
contraband,  when  the  said  articles  arc  not  used  specially  for 
military  purposes  except  in  certain  circumstances. 

Section  5.  Nevertheless,  the  belligerent  has  the  right, 
if  he  wishes  and  subject  to  his  paying  a  just  indemnity,  t)f 
sequestration  or  preemption  with  regard  to  articles  which 
are  bound  for  a  port  of  his  adversarj-  and  which  may  be  used 
either  for  purposes  of  peace  or  of  war. 


B. — Transport  Service 

Section  6.  To  attack  or  to  hinder  the  transportation  of 
the  following  diplomats  or  diplomatic  messengers  is  forbiii- 
den:  1.  neutrals;  2.  those  accredited  to  neutral  governments; 
8.  those  sailing  under  a  neutral  flag  between  neutral  ports  or 
between  a  neutral  and  a  belligerent  port. 

On  the  other  hand,  transportation  of  diplomats  of  the 
enemy  accredited  to  his  ally  is,  except  for  regular  and  ordi- 
nary traffic,  forbidden:  1.  on  belligerent  territory  imd 
waters;  2.  between  their  possessions;  8.  between  belligerent 

allies. 

Section  7.  The  transportation  of  an  enemy  s  troops, 
soldiers,  or  agents  of  war  is  forbidden:  1.  in  belligerent 
waters;  2.  Iwtween  their  authorities,  ports,  possessions. 
armies,  or  fleets;  8.  when  the  transportation  is  on  account  of 
or  by  order  or  mandate  of  an  enemy,  or  to  bring  him  cither 
agents  with  a  commission  for  war  operations,  or  soldiers  al- 
ready in  his  service  or  auxiliary  troops  or  those  recruited  m 
violation  of  neutrality.— lietween  neutral  ports,  between 
those  of  a  neutral  and  those  of  a  Injlligerent,  from  a  neutral 
point  to  the  army  or  the  fleet  of  a  belligerent. 


International  Regulation  of  Contraband  of  War      181 

TJf  prohibition  shaU  not  extend  to  the  transportation  of 
individuals  who  are  not  yet  in  the  military  service  of  a  beUiff- 
erent,  even  though  they  have  the  intention  of  entering  it,  or 
those  who  make  the  journey  as  simple  travelers  without  evi- 
dent  connection  with  military  service. 

Section  8.  The  transportation  of  dispatches  (official 
communications  between  official  authorities)  between  two 
authorities  of  an  enemy,  who  are  on  territory  or  a  ship  be- 
lon^ng  to  or  occupied  by  him,  except  regular  and  ordinary 
traffic,  IS  forbidden. 

This  prohibition  shall  not  extend  to  transportation  either 
between  neutral  ports,  or  emanating  from  or  destined  for 
some  neutral  territory  or  authority. 


C— General  Provisiom 

Section  9.  In  the  event  of  unjustifiable  seizure  or  re- 
pression because  of  contraband  or  transportation,  the  cap- 
tor's State  shall  be  liable  to  damages  and  responsible  for  the 
restoration  of  the  articles. 

Section  10.  Transportation  under  way  before  the  dec- 
laration of  war  and  without  necessary  knowledge  of  its 
imminence  shall  not  be  punishable. 


RULES  ON  BOMBARDMENT  OF  OPEN  TOWNS 
BY  NAVAL  FORCES  ' 

The  question  was  put  on  the  order  of  the  day  at  the  Cambridge  session 
in  189i  on  the  motion  of  Mr.  Holland,  who  was  appointed  reporter  with 
txiKfal  den  Beer  Poortugael. 

At  the  session  of  Venice  in  1896  Messrs.  Holland  and  den  Beer 
Poortu(fael  made  a  report  accompanied  by  proposals.' 

The  discussion  in  plenary  session  took  place  in  the  meeting  of 
Nptuiih.  r  'ij,  1896.^  and  resulted  in  the  adoption  on  tliat  date  of  the  fol- 
lowing ri  solutions:* 


'  .('M,i„.,,,     U.I.  H),  p.  M2. 
■  li->l    vol     1,'..  pp.  145,  liO. 


•  Ihid.,  p.  309. 

•  Ibid.,  p.  313. 


Sift 


I* 


182    EeaolutUm  of  the  Inttitute  of  International  Law 

AsTiCLE  1.  There  is  no  difference  between  the  rules  of 
the  law  of  war  regarding  bombardment  by  military  land 
forces  and  by  naval  forces. 

Abticle  2.  Consequently  the  general  prmciples  laid 
down  in  Article  82 '  of  the  Manual  of  the  Institute  are  appli- 
cable to  the  latter;  that  is  to  say,  that  it  is  forbidden:  (a) 
to  destroy  public  or  private  property  if  this  destruction  is 
not  demanded  by  an  imperative  necessity  of  war;  (6)  to 
attack  and  to  bombard  places  that  are  not  defended. 

Article  8.  The  rules  laid  down  in  Articles  88  and  84  of 
the  Manual  are  equally  applicable  to  naval  bombardments. 

Ahticle  4.  In  virtue  of  the  general  principles  above,  the 
bombardment  by  a  naval  force  of  an  open  town,  that  is  to 
say,  one  which  is  not  defended  by  fortifications  or  by  other 
means  of  attack  or  of  resistance  for  immediate  defense,  or 
b'  detached  forts  situated  near  by,  for  example,  at  a  maxi- 
n  urn  distance  of  from  four  to  ten  kilometers,  is  inadmissible 
'    cept  in  the  following  cases: 

1,   For  the  purpose  of  chaining  by  requisitions  or  con- 

iutions  what  is  necessary  for  the  fleet. 

These  requisitions  or  contributions  must  not  exceed  the 
.*its  prescribed  by  Articles  56  and  58  of  the  Manual  of  the 

i  iHitute.  ... 

>.   F  >r  the  purpose  of  destroying  dockyards,  militarj' 
ablish    ents,  depots  of  war  munitions,  or  war  vessels  in 

a    iort.  ,    .      ,,         •     ..  XI 

Faith  r,  an  open  town  which  defends  itself  against  the 
enir.ince  of  troops  or  of  marines  that  have  been  landed  may 
be  bonbarded  for  the  purpose  of  covering  the  disembarka- 
tion ot  the  soldiers  and  the  marines,  if  the  open  town  attempts 
to  prevent  it,  and,  as  an  auxiliary  measure  of  war,  to  tacili- 
tate  the  assault  made  by  the  troops  and  marines  that  have 
been  landed,  if  the  town  defends  itself. 

Bombardments  of  which  the  object  is  only  to  exact  a  ran- 
som are  specially  forbidden,  and,  a  fortiori,  those  which  are 
intended  only  to  bring  about  the  submission  of  the  country 


« Ant*,  p.  33. 


Bombardment  by  Naval  Forca  183 

by  the  destruction,  without  other  reason,  of  the  peaceful  in- 
habitants or  their  property. 

ARTICLE  5.  An  open  town  can  not  be  exposed  to  a  bom- 
bardment for  the  mere  reason: 

1.  That  it  is  the  capital  of  a  State  or  the  seat  of  the 
Government  (but  naturally  these  circumstances  do  not  guar- 
antee it  in  any  way  against  a  bombardment). 

2.  That  it  is  at  the  time  occupied  by  troops,  or  that  it  is 
ordinarily  the  garrison  of  troops  of  different  arms  intended 
to  join  the  army  in  time  of  war. 


CONFLICT  OF  LAWS  ON  THE  SUBJECTS  OF 
NATIONALITY  AND  EXPATRIATION  ' 

This  question  was  put  upon  the  order  of  the  day  by  the  Institute 
at  the  Hamburg  session  in  1891  on  the  motion  of  Mr.  von  MartiU. 
Messrs.  Catellani  and  Weiss  were  appoinU-d  reporters.  At  the  Paris 
session  in  1894,  Mr  Weiss  made  a  preliminary  report.'  At  the  Cam- 
bridge session  in  189S,  Mr.  Weiss  presented  a  report  and  conclusions.' 
In  the  plenary  session  of  August  U,  1893,  the  Institute  agreed  upon 
several  general  principles.* 

At  the  Venice  session  in  1896,  a  supplementary  report  and  draft 
resolutions  were  offered  by  Messrs.  Catellani  and  Weiss."  The  discus- 
sion in  plenary  session  took  place  September  26  and  28,  which  resulted 
in  the  following  resolutions  adopted  September  29:  * 

Resolutions    Adopted    by    the    Institute    of    Intei- 
NATioNAL  Law 

The  Institute  of  International  Law  recommends  to  tlie 
various  governments,  both  in  the  making  of  domestic  laws 
and  in  the  conclusion  of  diplomatic  conventions,  the  follow- 
ing principles: 

Article  1.  A  legitimate  child  follows  the  nationality 
with  which  its  father  was  clothed  on  the  day  of  its  birth, 
or  on  the  day  when  the  father  died. 


^AnHuairt,  vol.  30,  p.  i89. 
'Ibid.,  vol.    13,  p    I6i. 
'Ibid.,  vol.   14,  p.  6< 


'Ibid.,  pp.  19t  tt  ttq. 
'Ibid.,  vol.  li,  p  125. 
'  Ibid.,  pp    233,  210. 


r 
1 


184    RetduHotu  of  the  Irutitute  of  Intermtioml  Late 

AiTicLB  2.  An  illegitimate  child  which,  during  its 
minority,  is  acknowledgwi  by  its  father  only,  or  simulta- 
neously by  its  father  and  its  mother,  or  whose  parentage  is 
settled  by  the  same  judgment  with  regard  to  both,  follows 
the  nationality  of  its  father  on  the  day  of  its  birth;  if  it 
has  been  acknowledged  only  by  its  mother,  it  takes  the 
nationality  of  the  latter,  and  retains  it  even  when  its  father 

recognizes  it  later.  .     e^  ^ 

Abticle  8.  A  child  bom  upon  the  territory  of  a  htate, 
of  an  alien  father  who  was  himself  bom  there,  is  clothed  with 
the  nationality  of  that  State  provided  that  in  the  interval 
between  the  two  births  the  family  to  which  it  belonKs  1ms 
had  its  principal  abode  there  and  unless  the  child  has  elected 
for  the  nationality  of  its  father  in  the  year  of  its  majority 
as  fixed  by  the  national  law  of  its  father  or  by  the  law  ot 
the  territory  where  it  was  bom. 

In  cases  of  illegitimate  births  not  followed  by  acknowl- 
edgment on  the  part  of  the  respective  parents,  the  preceding 
rule  also  applies  by  analogy. 

It  does  not  apply  to  the  children  of  diplomatic  agents 
or  of  consuls  (mitti)  regularly  accredited  in  the  country 
where  they  are  born;  these  children  are  deemed  to  be  born 
in  the  coimtry  of  their  father. 

Article  4.  Unless  the  contrary  has  been  expressly  re- 
served at  the  time  of  naturalization,  the  change  of  nation- 
ality of  the  father  of  a  family  carries  with  it  that  of  his 
wife,  if  not  separated  from  her,  and  of  his  minor  children, 
saving  the  right  of  the  wife  to  recover  her  former  nationality 
by  a  simple  declaration,  and  saving  also  the  right  of 
option  of  the  diildren  for  their  former  nationality,  either 
in  the  year  following  their  majority,  or  beginning  with 
their  emancipation,  ¥rith  the  consent  of  their  legal 
assisteit. 

A«Tici.E  5.  Xo  one  cnn  be  allowed  to  obtain  naturaliza- 
tion in  a  foreign  country  unless  he  proves  that  his  country  <'l 
origin  releases  him  from  his  allegiance,  or  at  least  that  he 
has  acquaint***!  the  government  of  his  country  of  origin  with 


Nationality  and  Expatriation  185 

hM  wish,  and  that  he  has  witislied  the  military  law  for  the 
period  of  active  service  provided  by  the  laws  of  that  country. 
AjiTicLB6.  No  one  can  lose  his  nationality  or  renounce 
It  unless  he  shows  that  he  has  fulfilled  the  condiUons  re- 
quired to  obtain  his  admission  into  another  State  Dena- 
tionalization can  never  be  imposed  as  a  penalty. 


USE   OF   THE   NATIONAL   FLAG    FOR   MER- 
CHANT  SHIPS ' 

of  Mr  A'.eT'i!af  e"„',  ^T^^'«  •»  '89'.  ^^  q""tion,  on  the  metJan 
01  wr  Aiser,  wai  cntertd  on  the  prosram  in  these  word.-  •  '."^  !» 
be  useful  and  powible  to  lay  down  uniform  rule.  Jo"r„*^g  he  c^n"^  L. 

flv  th'.  :\^^'  ,'fl  "r^,/""""^'  ""^"•'"»"'  'hip.  fhallTave  the  S  °t^^ 
fly  the  naUonal  flag?    If  ,o.  what  should  these  rule,  be?  "    At  "h-  meetin. 

;  theT  wlti".' dK'f  :'Tr"'  ^"'^,"T  P'-^"''«'  their'reporto? 
Lk  !^i        w     .    \  '""Jut'O'"'     The  discussion  in  plenarv  .e.sion 


Section  I.— Acsuisiiion  op  the  R:oht  to  the  Flao  of 

A  State 

uJ^V"!^  '•   ''^  *.'■'  *°'''''  •*  '"KriW  on  the  register 

!•    Of  nationals;  or 
mnniff^^  f  Company  under  a  collective  name  or  a  com- 
mandUe  of  which  more  than  half  the  members  personaUy 
responsible  are  nationals;  or  ^  s^nauy 

™«„!i-/r  "  "'**'""f '  •'*"*■''  company   (joint-stock  or  com- 
mandite), two-thirds  at  least  of  the  directors  of  which  are 


'■Innuaire,  vol.  30,  p.  SiO. 
'Ibid.,  vol.   13,  pp.  il,  7J 


'Ibid.,  p.  189. 
*]bid.,  p.  SOl. 


186    Resolutions  of  the  Institute  of  International  Law 

national!;  the  same  rule  applies  to  associations  and  other 
legal  persons  owning  ships. 

Abticle  8.  The  concern  (whether  an  individual  ship- 
owner, a  company  or  corporation)  must  have  its  head- 
quarters in  the  State  whose  flag  the  ship  must  fly  and  in 
which  it  must  be  registered. 

Abticle  4.  Each  State  shall  determine  the  conditions  to 
be  fulfilled  in  order  to  be  appointed  captain  or  first  officer 
of  a  merchant  ship:  but  the  nationality  of  the  captain  ur 
that  of  the  members  of  the  crew  shall  not  be  a  condition  of 
acquiring  or  forfeiting  the  right  to  the  national  flag. 


Section  II. — Fosfeituse  of  the  Right  to  the  FLi\« 

OF  A  State 

Article  S.  Failure  to  comply  with  one  of  the  conditions 
under  which  this  right  may  be  acquired  does  not  entail  for- 
feiture of  this  right  until  after  the  ship  has  been  erased  front 
the  register.  Such  erasure  is  made  at  the  request  of  the 
owners  or  of  the  management  of  the  ship,  or  by  the  authority 
intrusted  with  the  register,  except  as  provided  for  by  Ar- 
ticles 7  and  8  below. 

Articij:  6.  The  owner  or  the  management  which  shall 
have  neglected  to  send  the  necessary  notification  to  this 
authority  shall  be  liable  to  a  fine. 

Article  7.  If  the  change  in  ownership  of  a  share  in  the 
ship  causes  the  forfeiture  of  the  right  to  the  flag,  the  owntrs 
shall  be  granted  a  suitable  length  of  time,  in  order  to  take 
the  measures  necessary  for  the  ship  to  retain  its  former  na- 
tionality, or  to  acquire  another. 

Article  8.  If,  after  the  expiration  of  this  period,  tliose 
interested  have  not  taken  the  measures  necessary  to  attain 
one  of  these  two  ends,  the  ship  shall  be  erased  from  the  rcf,'is- 
ter,  and  the  person  responsible  for  tlie  loss  of  nationolity  or 
his  heirs,  if  the  loss  of  nationality  is  due  to  his  death,  shall 
be  liable  to  a  fine. 


Ute  of  the  National  Flag  for  Merchant  Ships    187 

Section  III.— Tkmpoiasy  Acquisition  of  the  Right  to 

THE  Flag 

Aeticle  9.  Temporary  acquisition  of  the  right  to  a  flair 
occurs  in  two  cases: 

1.  When  a  ship,  built  abroad,  cannot  definitely  acquire 
the  right  to  a  flag  until  after  its  arrival  in  one  of  the  porta  of 
the  owner's  State; 

2.  When  a  ship  changes  owners  while  in  a  foreign  port. 
Abticle  10.    In  each  of  these  two  cases,  the  consuls  and 

consular  agents  residing  in  the  country  in  which  the  ship  is, 
shall  be  charged  with  the  giving  of  a  provisional  certificate,  if 
the  essential  conditions  imposed  by  law  for  acquiring  the  na- 
tionality of  the  ship  be  fulfilled ;  this  certificate  shall  be  valid 
only  during  a  period  to  be  determined  by  law. 


EMIGRATION  FROM  THE  POINT  OF  VIEW  OF 
INTERNATIONAL  LAW ' 

The  question  waa  entered  upon  the  program  at  the  meeting  at  Venice 
in  1896,  on  the  motion  of  Mr.  Olivi,  who,  with  Mr.  Heimburger,  was 
appointed  reporter.  At  the  meeting  at  Copenhagen  in  1897.  Messrs. 
Olivi  and  Heimburger  presented  a  report  with  a  draft  of  regulations.' 
rhe  discussion  took  place  in  plenary  session  th.  87lh  of  August  and  the 
1st  of  September,  1897."  It  resulted  in  the  adoption  on  the  latter  date  of 
the  following  principles  and  vara; 

I.— Phinciples  Recommended  fob  a  Draft  Con\t.ntion  * 

Article  l.  The  contracting  States  recognize  liberty  of 
emigration  and  immigration  for  individuals,  singly  or  in 
numbers,  without  distinction  of  nationality. 

This  liberty  cannot  be  restricted  except  by  duly  published 
decisions  of  governments  and  within  the  strict  limits  of  the 
necessities  of  a  social  and  political  nature. 

The  said  decisions  shall  be  notified  without  delay  through 
diplomatic  channels  to  the  States  interested. 


'  .imtmairr,  vol.  iO,  p.  308. 
■  Ibid.,  vol.  18,  pp.  43,  58. 


•  Ihid.,  pp.  2*3  el  itq. 

•  Ibid.,  p.  293. 


ii 


MKHOCOfY   IBOIUTION   TEST   CHAIT 

(ANSI  and  (SO  TEST  CHART  No   2) 


A     APPLIED  IM/QE    In 

1653   Eos!   Mo.n    Stf#et 

Rochester.   Htm   York  1*509       uSA 

(716)    462  -  0300  -   Phone 

C7'6)  288  -  5989  -  fan 


1W' 


188    Resolutions  of  the  Institute  of  International  Law 

Abticle  2.  Emigration  shall  be  forbidden  to  those  whom 
the  laws  of  the  State  of  immigration  forbid  to  immigrate. 

Article  3.  The  contracting  States  from  which  there  is 
considerable  regular  emigration  shall  organize  a  central 
bureau  of  emigration,  from  which  shall  proceed  all  measures 
for  the  regulation  and  control  of  emigration,  and  with  which 
shall  be  connected  an  information  service  entrusted  with 
publications  relative  to  the  interests  of  emigrants  and  freely 
accessible  upon  request  to  all  those  who  intend  to  emigrate, 
without  distinction  of  nationality. 

Article  4.  The  governments  agree  to  publish  regu- 
larly all  information  concerning  emigrants  from  the  moral, 
hygienic,  and  economic  points  of  view,  taking  care  that  they 
shall  be  fully  informed  of  the  situation  before  concluding 
the  emigration  contract. 

They  agree  also  to  punish  severely  all  dissemination  of 
false  reports  concerning  emigration. 

Article  5.  Each  State  shall  forbid  persons  or  societies 
authorized  to  act  as  emigration  agencies  to  conclude  con- 
tracts by  which  they  engage  to  furnish  a  certain  number  of 
persons  to  any  enterprise  whatever  or  to  a  foreign  govern- 
ment, unless  a  special  authorization  is  given  in  each  case. 

Article  6.  All  persons  authorized  to  act  as  emigration 
agents  shall  be  jointly  responsible  to  the  authorities  and  to 
the  emigrants,  their  successors  and  assigns,  for  all  the  acts  of 
their  administration  and  that  of  their  officers  or  representa- 
tives, within  the  country  as  well  as  abroad. 

Article  7.  The  emigration  bureaus  or  the  naval  authori- 
ties of  the  port  of  departure  shall  in  good  time  inform  the 
consuls  of  the  country  of  emigration  stationed  in  the  ports 
to  which  the  ships  are  bound,  of  the  fact  that  there  are 
emigrants  aboard,  and  at  the  same  time  furnish  them  with 
all  necessary  information. 

Article  8.  The  contracting  States  engage  to  see  to  the 
protection  of  immigrants  and  to  placing  them  through  the 
bureaus  of  immigration. 

Article  9.  The  governments  may  authorize  the  said 
bureaus,  as  well  as  those  mentioned  in  Article  4,  as  established 


Emigration  189 

in  the  various  States,  to  communicate  freely  and  directly  with 
each  other  in  all  that  concerns  their  respective  affairs. 

Articij;  10.  All  the  contracting  States  shall  endeavor  to 
come  to  an  understanding  in  order  to  insert  in  their  penal 
codes  the  provisions  necessary  to  ensure  punishment  for  in- 
fraction of  the  rules  in  force  concerning  emigration. 

II— F(Eu  Relative  to  the  Subject  of  Emigration  ' 

Considering  the  extraordinary  importance  of  emigration, 
which  has  greatly  increased  in  our  day,  and  in  order  the  bet- 
ter to  ensure  complete  and  effective  protection  for  the  inter- 
ests of  emigrants  and  of  immigrants  from  the  moral,  hy- 
gienic, and  economic  points  of  view,  the  Institute  sets  forth 
in  the  form  of  voeux,  the  following  propositions,  the  adop- 
tion of  which  it  recommends  to  the  States: 

1.  That  emigration  be  forbidden: 

(a)  To  minors  and  lunatics,  without  the  consent  of 
those  who  exercise  the  authority  of  father  or  guardian  over 
them; 

(6)  To  persons  unable  to  work  on  account  of  advanced 
age  or  illness,  unless  their  support  is  sufficiently  guaranteed 
at  their  place  of  destination; 

(c)  To  persons  afflicted  with  contagious  diseases  of  a 
kind  to  endanger  the  health  of  their  fellow  passengers  or 
the  public  health  of  the  country  to  which  they  are  going. 

2.  That  no  one  be  allowed  to  undertake  the  making  of 
contracts  with  or  the  transporting  of  emigrants  without 
the  authority  of  the  government  in  which  these  operations 
are  to  be  carried  on. 

3.  That  the  agents  and  representatives  of  emigration 
agencies  may  not  obtain  the  said  authority  except  under  the 
following  conditions: 

(a)  That  they  have  attained  their  majority; 

(b)  That  they  are  citizens  of  the  State  from  which 
they  request  the  authority; 

(c)  That  they  enjoy  civil  and  political  rights; 

'  Annuaire,  vol.  16,  p.  976. 


!i;. 


140    Resolutions  of  the  Institute  of  International  Law 

(d)  That  they  have  a  legal  residence  in  the  State  from 
whose  authorities  the  authorization  is  requested; 

(e)  That  they  are  moral  and  enjoy  a  good  reputation; 
(/)    That  they  have  never  been  found  guilty  of  crime 

or  serious  offense,  nor  of  infraction  of  the  regulations  gov- 
erning emigration. 

4.  That  the  granting  of  authorization  be  dependent,  in 
every  case,  upon  the  previous  deposit  of  security,  the  amount 
of  which  shall  be  determined  by  the  States,  in  order  to  guar- 
antee the  claims  that  the  authorities  or  the  emigrants  may 
bring  according  to  the  provisions  of  the  law,  as  well  as  for 
the  fines  imposed  for  infractions  under  the  laws  and  regula- 
tions in  force. 

5.  That  the  said  security  be  not  restored  to  the  -nterested 
parties  until  after  a  reasonable  length  of  time. 

6.  That  the  States  take  severe  measures  and  exercise 
strict  surveillance  to  prevent,  in  any  case,  persons  and  so- 
cieties authorized  to  act  as  emigration  agents  from  urging  the 
inhabitants  of  the  country  to  emigrate,  taking  advantage  of 
their  ignorance  and  good  faith  to  persuade  them  to  make 
emigration  contracts. 

7.  That  under  pain  of  nullification,  the  emigration 
contract  be  made  in  writing  and  subject  to  the  control 
of  local  public  authority  designated  by  the  law  of  each 
State. 

8.  That  the  price  of  transportation  shall  be  always  a 
sum  of  money  to  be  paid  in  full  before  departure  and  may 
never  be  contracted  in  personal  prestations,  under  penalty  of 
nullification  of  any  agreement  to  the  contrary. 

9.  That  the  entire  and  immediate  restoration  of  the  price 
of  transportation  really  paid  be  declared  obligatory,  when  the 
emigrants  shall  be  prevented  from  departing  by  reason  of 
force  majeure  or  important  circumstances  arising  after  the 
concluding  of  the  contract,  under  penalty  of  nullification  of 
any  agreement  to  the  contrary. 

10.  That  the  ships  intended  for  the  transportation  of 
the  emigrants  be  provided  with  suitable  arrangements,  mak- 
ing possible  a  complete  and  strict  separation  of  the  sexes,  be 


Emigration  j^j 

weU^ventilated,  and  provided  with  medical  attendance  on 

11.  That  the  emigrants,  even  in  case  of  free  transporta- 
tion by  sea,  have  the  right  always  to  wholesome  food  and 
loiging.  sufficient  and  suitable,  as  well  as  to  medical  atten- 
tion throughout  the  entire  voyage  and  also  in  the  event  of 
Its  'nterruption  for  any  cause  whatever  beyond  their  control. 

1-i.  Ihat  the  emigration  agencies  or  agents  ensure,  at 
their  expense,  before  the  departure  of  the  emigrants  and  in 
their  interest  the  price  of  transportation  and  provisions,  and 
all  losses  and  all  injuries  resulting  from  the  total  or  partial 
non-performance  of  the  transportation  contract. 

18.  That  the  States,  by  joint  rules,  provide  foi-  the  rapid 
and  economical  settlement  of  disputes  between  emigrants  and 
emigration  agencies  or  agents  and  institute,  if  they  think 
best,  an  arbitration  commission  which  shall  render  a  defini- 
tive judgment  upon  every  claim,  without  prejudice  to  the 
right  of  the  parties  to  bring  their  suit  before  the  regular 
courts  or  before  arbitrators  voluntarily  chosen  by  them 

14.  That  the  States  ensure  full  liberty  of  action  to  pro- 
tective associations  which,  while  not  regarding  emigration 
as  a  matter  of  speculation,  shall  assist  the  emigrants  from 
charitable  motives  only. 


-r 


PRIZES— HARMONIZING  OF  THE  DRAFT  REG- 
ULATIONS  ON  PRIZES  OF  1887  WITH  THE 
DRAFT  REGULATIONS  ON  CONTRABAND 
OF  WAR  ADOPTED  IN  1896  ' 

In  consequence  of  the  adoption  of  the  regulations  on  contraband  of 
war,  vanous  changes  had  to  be  made  in  the  international  regulaUons  on 

rn^?A^\^^^^r^  '"  '*"'^  """^  proposals  on  this  subject  and  they 
resulted  in  the  adoption  of  the  following  amendments  to  be  inserted  in 
the  international  prize  regulations.'  '"scnea  in 


'  Annuaire,  vol.  20,  p. 
'Ante,  pp.  45,  71, 


378. 


'AnAmire,  vol.  16,  p.  311. 


?'* 


W*    Resolutions  of  the  Institute  of  International  Law 


'I 


First  Text  of  Pkize 

Regulations  ' 

Ahticle  30.  During  the 
war  objects  capable  of  being 
iiiunediately  employed  for 
war  purposes  and  trans- 
ported by  neutral  or  enemy 
national  merchant  vessels  for 
the  account  of  or  destined  to 
the  enemy  (contraband  of 
war)  are  subject  to  seizure. 
The  belligerent  governments 
shall  determine  in  advance,  in 
each  war,  the  objects  which 
they  will  consider  contra- 
band. 

Articij:  84.  In  the  same 
category  as  transportation  of 
contraband  of  war  (Article 
30)  is  transportation  of 
troops  for  military  opera- 
tions by  the  enemy  on  land 
and  sea,  as  well  as  transpor- 
tation of  official  correspond- 
ence of  the  enemy  by  neu- 
tral or  enemy  national  mer- 
chant vessels. 


New  Texts* 

Ajiticle  30.  During  war, 
those  objects,  which,  made 
expressly  for  war,  of  imme- 
diate and  special  use  therein 
in  their  existing  state,  and 
transported  by  sea  for  the 
account  of  or  destined  to  a 
belligerent,  come  under  the 
category  of  contraband  of 
war,  are  subject  to  seizure. 


Article  84.  Illegal  trans- 
portation of  agents,  soldiers 
and  dispatches  for  a  bellifi- 
erent,  hitherto  in  the  same 
category  as  the  carrying  of 
contraband,  shall  be  treated 
as  prohibited  transport  serv- 
ice, according  to  the  second 
part  of  the  international 
regulations  on  contraband  of 
war. 


Article  118.  In  order  that  a  vessel  may  be  condemned 
because  of  being  engaged  in  transportation  prohibited  in 
time  of  war,  it  is  necessary: 


1.  That  the  transporta- 
tion be  to  an  enemy  destina- 
tion; 


1.  Ihat  the  shipment  of 
contraband  be  destined  for  a 
belligerent; 


'  Annuaire,  vol.  16,  p.  44.     See  ante,  pp.  51,  6i,  76. 


International  Regulation*  Concerning  Prizes      143 

ditional  contraband,  of  war; 
8.  That  the  contraband 
be  seized  in  the  very  act  of 
being  transported,  or  that  it 
be  found  on  board  a  vessel 
when  the  latter  is  stopped. 

Article  117.  Official  cor- 
respondence and  contraband 
transported  to  an  enemy  des- 
tination shall  be  confiscated; 
troops  in  course  of  transpor- 
tation to  the  enemy  shall  be 
made  prisoner  ..  The  vessel 
transporting  them  shall  not 
be  condemned  unless: 

1.  It  offers  resistance; 

2.  It  transports  enemy 
troops; 

3.  If  the  cargo  in  course 
of  transportation  to  an 
enemy  destination  is  com- 
posed principally  of  provi- 
sions for  the  war  vessels  or 
troops  of  the  enemy. 


3.  That  the  object  trans- 
ported be  itself  prohibited; 

4.  That     the     ship     be 
caught  in  the  act. 


Article  117.  Contra- 
band, as  well  as  every  article 
illegally  transported,  shall 
be  confiscated,  and  the  per- 
sons and  troops  illegally 
transported  shall  be  made 
prisoners.  The  vessel  trans- 
porting them  shall  not  be 
condemned  unless: 

1.  It  offers  resistance; 

2.  It  transports  illegally 
agents,  soldiers  or  dispatches 
for  a  belligerent. 


& 


If 


STATUS   OF   SHIPS   AND   THEIR    CREWS    IN 

with  Mr   K^"l'"*  '!i^""'"'  '"  '«^^'  ^^'-  FeraudGiraud,  in  collaboration 
:!:^h^.  Kleen,  made  a  report  accompanied  by  a  draft  of  regulations  in 
'  Ihtd.,  vol.  20,  p.  323. 


144    Resolutions  of  the  Institute  of  International  Law 

fifty-one  articles,  including  preliminary  provisions,  rules  for  a  time  of 
peace  and  rules  for  a  state  of  war.'  The  question  came  up  for  discussion 
at  the  meeting  in  Copenhagen  in  1897,  and  a  text  containing  the  pre- 
liminary provisions  and  the  first  part  (state  of  peace)  was  adopted  sub- 
ject to  revision.'  At  the  meeting  at  The  Hague  in  1898,  Messrs.  F6raud- 
Giraud  and  Kleen,  who  had  not  been  present  at  the  meeting  in  Copiii- 
hagen,  made  further  remarks  to  the  Institute  concerning  the  draft  as  n 
whole.'  The  discussion  took  place  in  plenary  session  August  SO,  22  and 
SS,  1898,  and  resulted  in  the  adoption  on  the  last-mentioned  date  of  tlie 
following  regulations :  * 

Regulations  Concebnino  the  Legal  Status  of  Ships 
AND  Thexe  Crews  in  Foreign  Ports  ' 

Preliminary  Provisions 

Article  1.  The  provisions  of  the  present  regulations 
are  applicable  not  only  to  ports,  but  also  to  inlets  and 
inclosed  or  open  roadsteads,  to  bays  and  harbors  which  can 
be  assimilateid  to  these  inlets  and  roadsteads. 

Article  2.  The  said  ports,  harbors,  inlets,  roadsteads 
and  bays  are  not  only  under  the  right  of  sovereignty  of  the 
States  whose  territory  they  border,  but  are  also  part  of  the 
territory  of  these  States. 

Article  3.  As  a  general  rule,  access  to  the  ports  and 
other  portions  of  the  sea  specified  in  Article  1,  is  presumed 
to  be  free  to  foreign  ships. 

By  exception,  for  reasons  of  which  it  is  sole  judge,  a 
State  may  declare  its  ports  or  some  of  them  closed — even 
when  treaties  guarantee,  in  a  general  way,  free  access,— when 
the  safety  of  the  State  or  the  interest  of  the  public  health 
justifies  the  order. 

Entrance  to  the  ports  may  also  be  refused  to  a  particular 
nation,  as  an  act  of  just  reprisal. 

Article  4.  Exclusively  military  ports  or  those  where 
arsenals  intended  for  the  construction  and  armament  of  the 
naval  forces  of  the  country  are  located  are  to  be  considered 
as  regularly  closed  and  access  to  them  rightfully  forbidden 
to  ships,  without  distinction  of  flag. 


^  Annuoire,  vol.  15,  p.  IS. 
•  Ibid.,  vol.  16.  pp.  186,  i31. 
•/6irf.,  vol.  17,  p.  36. 


♦  Ibid.,  p.  931. 

•  Ibid.,  p.  273. 


Status  of  Ships  and  Crews  in  Foreign  Ports       us 

Abticle  5.    Tlie  State  as  sovereign  has  the  right: 

lo  regulate  the  conditions  of  entrance  and  of  sojourn  to 

wh.ch  those  who  frequent  the  part  of  the  coast  mentioned 

111  Article  1  must  conform ; 

To  reserve  to  its  nationals  certain  branches  of  commerce, 
mdustry  or  navigation ; 

To  establish,  under  penal  sanctions,  regulations  concern- 
ing  navigation,  order,  safety,  public  health  and  poUce  in  its 
various  departments; 

To  impose  fiscal  charges  of  various  kinds,  especially  cus- 
toms  duties,  and  to  enforce  obedience  to  the  measures  neces- 
sary  to  ensure  the  collecting  of  such  taxes. 

Aeticle  6.  When  necessity  compels  putting  into  port, 
entrance  to  a  port  may  not  be  refused  to  a  ship  in  distress, 
even  when  such  port  is  closed  in  conformity  with  Article  8 
or  Article  4. 

The  ship  seeking  port  shall  conform  strictly  to  the  con- 
ditions which  shall  be  imposed  upon  it  by  the  local  authority; 
but  these  conditions  shall  not  be  such  as  to  prevent  by  their 
extreme  severity  the  exercise  of  the  right  of  putting  into 
port  when  compelled  by  necessity. 

The  authorities  of  a  country  owe  help  and  relief  to  for- 
eign vessels  shipwrecked  on  their  coasts;  thev  must  ensure 
respect  for  private  property,  send  word  to  the  consulate  of 
the  shipwrecked  and  assist  the  agents  of  this  consulate  in 
what  they  do  when  they  intervene. 

It  is  to  be  hoped  that  States  will  require  reimbursement 
only  for  necessary  expenses. 

Aeticle  7.  The  status  established  by  the  principles 
recognized  by  public  international  law  differs  essentially 
according  to  whether  it  is  applied  to  war-ships  or  to  mer- 
chant  ships,  m  peace  or  in  war. 

Pabt  I.— Ix  Peace 
Section  I.— The  Navy 

AETicp  8.  Considered  as  war-ships,  and  as  such  sub- 
ject to  this  regulation,  are  all  ships  mider  the  command  of 


;  t. 


t  .i 


146    Resolution*  of  the  Institute  of  International  Law 

an  ofBcer  in  active  service  in  the  navy  of  the  State,  manned 
by  a  naval  crew,  and  authorized  to  carry  the  ensign  and  the 
pennant  of  the  navy. 

The  build  of  the  ship,  the  purpose  for  which  it  was  for- 
merly  used,  the  number  of  individuals  which  compose  its 
crew  cannot  change  this  character. 

Assimilated  to  war-ships  are  foreign  ships  which  are  ex- 
pressly at  the  service  of  the  heads  of  the  State  or  their 
official  representatives.  The  small  boats  which  belong  to 
these  ships  have  the  same  status. 

Abticle  9.  In  cases  where  privateering  may  be  legally 
carried  on,  those  privateers  shall  also  be  assimilated  to  war- 
ships, which  during  the  war  shall  be  bearers  of  commissions 
regularly  conferred  by  the  belligerent  State  upon  the  na- 
tionality to  which  they  belong. 

Aeticle  10.  Unless  there  are  treaties,  laws,  regulations 
or  special  prohibitions  to  the  contrary,  ports  are  open  to 
foreign  war-ships,  on  condition  of  their  strict  observance, 
both  upon  entrance  and  during  their  stay,  of  the  conditions 
upon  which  they  are  admitted. 

Article  11.  The  commander  of  a  foreign  war-ship  who 
intends  to  anchor  in  a  roadstead  or  in  a  port,  shall  ask  per- 
mission to  do  so  from  the  local  authorities,  telling  his  reasons, 
and  shall  not  enter  until  after  he  has  received  an  answer  in 
the  affirmative. 

Good  reasons,  of  which  the  authority  of  the  country  is  the 
sovereign  judge,  may  prompt  a  refusal  of  admission  or  a 
request  to  depart. 

Article  12.  A  foreign  war-ship  which  enters  a  port, 
shall  conform  to  the  formalities  sanctioned  by  custom  in  de- 
fault of  a  treaty. 

Article  13.  Foreign  war-ships  admitted  to  ports  must 
rt.pect  local  laws  c  J  regulations,  especially  those  concern- 
ing navigation,  anchorage  and  public  health. 

In  case  of  serious  and  continued  infraction,  the  com- 
manding officer,  if  courteous  official  warning  has  had  no 
effect,  may  be  requested  and,  if  ner.ssary,  compelled  to  put 
to  sea. 


StaUu  of  Shift  and  Crewa  in  Foreign  Portt       147 

coJdtZt%h^''*'""  «^" 'fPP'y  -f  the  local  authorities 
coMider  that  the  presence  of  his  ship  is  a  cause  of  disorder 
or  of  danger  to  the  safety  of  the  State. 

But,  except  in  cases  of  extreme  necessity,  these  severe 
measures  shall  not  be  adopted  except  upon  order  of  the  «n! 
tral  government  of  the  country.  u«:r  oi  me  cen 

Ahticij:  14.  With  regard  to  customs  duties,  as  a  general 
rule,  all  foreign  war-ships  shall  be  exempt  from  insSon 
..n  board  by  customs  officers;  the  latter  shdl  merel^kLp  he 
vessels  under  observation.  ^ 

Ahticle  15.  War-ships  in  a  foreign  port  shall  remain 
subject  to  the  Power  to  which  they  belolTg.^the  l^al  ^ov"?^ 
ment  havmg  no  right  to  exercise  authority  or  juriEon 
over  those  on  board,  nor  to  interfere  in  what  happlron 
board,  except  m  the  case  provided  for  in  Article  16 

.mZ^TZ  °!f  i"'  '"'u- '""'  ^*^^^"  *he  commanders  and 
officers  on  board  these  ships  and  the  authorities  on  land  are 

Sljlitrcllt"'™"^^^^^^^^^  ^"'' ''  "^^^-"^'  *'^-"«»' 

tJ,.f  T'"''"'  ^^'  ^u'T'  *"^  ""^^"^^  committed  on  board 
these  ships  or  on  the  boats  belonging  to  them,  whether  by 
members  of  the  crew,  or  by  any  others  on  board,  shall  come 

Til'Li  J""«'^f  r,f  u*^^  "°"^'  °f  *he  nation  to  which  the 
ship  be  ongs  and  shall  be  judged  according  to  the  laws  of 
that  nation,  whatever  be  the  nationality  of  the  perpetrators 
or  the  victims.  ^ 

Whenever  the  commander  shall  deliver  the  delinquent 
over  to  the  local  authorities,  the  latter  shall  regain  the  juris- 
thfrn  "  ""       ordinary  circumstances  would  belong  to 

Article  17.  When  disorders  shall  occur  on  board  a  ship 
and  the  commander,  powerless  to  quell  them,  shall  request 
he  cooperation  of  the  local  authority  to  help  him,  if  the 
latter  shall  ip-ant  it,  he  shall  immediately  advise  the  central 
authority,  who  shall  communicate  this  information  to  the 
ocal  representative  of  the  government  to  which  the  ship 
Wongs  and  together  they  shall  agree  upon  the  measures  to 


148    Reaolutioru  of  the  Institute  of  International  Law 

If  order  outside  the  ship  shall  \k  .ndangered.  the  local 
authority  shall  take  the  necessary  measures  within  his  waters 
to  remedy  the  situation,  provide<l  that  he  give  notice  as 
stipulated  above,  and  under  the  conditions  there  indicated. 

In  case  of  extreme  necessity,  the  local  authority  shall 
himself  attend  to  the  matter. 

Articli:  18.  If  people  from  on  board  shall  commit  viola- 
tions of  the  law  of  the  country  on  land,  they  may  be  arrested 
by  officers  of  the  authority  of  the  country  and  given  up  to 
local  justice. 

Notice  of  the  arrest  shall  be  sent  to  the  commander  of 
the  ship,  who  cannot  require  them  to  be  given  up. 

If  the  delinquents,  not  having  l)een  arrested,  shall  return  on 
board,  the  local  authority  cannot  take  them  thence,  but  may 
require  only  that  they  be  handed  over  to  their  national  courts 
and  that  it  be  informed  of  the  result  of  the  proceedings. 

If  the  persons  accused  of  misdemeanor  or  crime  com- 
mitted on  land  are  on  duty,  whether  individually  or  collec- 
tively, in  virtue  of  a  concession,  express  or  tacit,  of  the  local 
authority,  they  shall,  after  their  arrest,  upon  the  request  of 
the  commandvjr,  be  delivered  over  to  him  with  the  proch- 
verhaux  stating  the  facts,  and  with  the  request,  if  necessary, 
that  they  be  l)rought  before  their  competent  national  author- 
ity, and  that  the  local  authority  be  informed  of  the  result  of 
the  proceedings. 

Ahticle  19.  The  commander  shall  not  grant  asylum  to 
persons  prosecuted  or  condemned  for  misdemeanors  or 
criiiies  under  common  law,  nor  to  deserters  belonging  to  the 
army  or  navy  of  the  country  or  to  another  ship. 

If  he  shall  receive  political  refugees  on  board,  it  must  be 
clea^y  established  that  they  are  such,  and  he  must  admit 
then/  under  such  conditions  that  the  act  does  not  constitute  on 
his  part  assistance  given  to  one  of  the  parties  in  dispute  to 
the  prejudice  of  the  other. 

He  may  not  land  these  refugees  in  another  part  of  the 
country  from  which  he  has  taken  them  on  board,  nor  so  near 
to  that  country  that  they  may  easily  return  thither. 

Ahticle  20.    Persons  who  shall  take  refuge  on  board. 


St^us  of  Ships  and  Crews  in  Foreign  Ports       149 

unknown  to  the  wmmander.  may  l)e  delivered  up  or  forced 
to  leave. 

AiTicu:  21.  Whatever  shall  lie  the  status  of  persons  on 
boanl  a  war-sh  p,  even  when  they  have  heen  wrongly  re- 
ceived, if  the  commander  refuses  to  give  them  up.  force  may 
not  be  resorted  to  to  ensure  their  recapture,  or  visit  and 
search  exercised  to  that  end. 

The  same  rule  shall  apply  to  the  recovery  of  goods  on 
board  which  are  the  subject  of  claims. 

In  the  cases  provided  for  by  this  article,  the  local  author- 
ity which  wishes  to  secure  extradition  of  persons  or  return  of 
goods,  must  apply  to  the  central  authority  af  the  State  in 
order  that  the  necessary  diplomatic  steps  to  this  end  may  be 
taken.  ' 

Ahticle  22.  Deserters  from  the  ship  arrested  on  land 
shall  be  returned  to  the  authority  on  board. 

If  the  ship  shall  have  left,  they  shall  be  put  at  the  dis- 
position of  the  representatives  of  that  authority  and  held  at 
the  expense  of  the  State  in  whose  ser^'ice  they  are.  for  a 
perio<l  of  two  months  at  most,  at  the  expiration  of  which  time 
the  man  shall  be  set  at  liberty  and  may  not  be  rearrested  for 
the  same  offense. 

The  refusal  of  the  local  authority  to  put  deserting  sailors 
under  arrest,  at  the  request  of  the  o.^Rcers  on  lH)ard,  may  be 
cause  for  just  diplomatic  claims,  but  in  no  such  case  are 
these  officers  authorized  to  act  directly  toward  this  end 
through  men  of  their  crew  or,  at  their  direct  request,  through 
local  officers. 

Article  23.  Obligations  personally  contracted  as  pri- 
vate individuals  by  men  on  board  toward  persons  not  mem- 
Jers  of  the  crew  are  binding  upon  them  as  upon  all  other 
foreigners;  disputes  which  may  arise  on  this  subject  are 
cognizable  in  the  competent  courts,  and  subject  to  the  laws 
applicable  accordin'j  to  the  rules  of  common  law,  but  those 
regularly  carried  on  the  muster-roll  are  not  subject  to  per- 
sonal restraint,  such  as  arrest,  which  would  remove  them 
from  service  on  board. 

Ahtici.f.  24.    Ships  set  apart  by  the  State  exclusively  for 


•p- 


Mm 


150    Resolutions  of  the  Institute  of  International  Law 

the  postal  service,  can  claim  only  those  privileges  which  are 
accorded  them  by  conventions  and  custom. 

Section  II. — Merchant  Marine 

Akttcle  25.  Foreign  merchant  ships  in  a  port  shall  be 
under  the  protection  of  the  authority  of  the  country.  They 
shall  be  subject,  as  a  general  rule  and  except  for  the  formal 
derogations  sanctioned  by  the  following  articles,  to  the 
police  and  inspection  regulations  and  to  all  the  regulations 
in  force  in  the  port  in  which  they  are  received. 

Abticle  26.  They  shall  pay  the  duties,  tolls,  dues  and 
taxes  lawfully  claimed,  submitting  to  the  law  of  the  land 
for  assui  ing  their  collection,  without  its  being  necessary  in 
the  regular  and  normal  carrying  out  of  these  formalities,  /or 
the  local  agents  to  have  recourse  to  the  intervention  of 
consuls  or  other  agents  of  the  nation  to  which  the  ship 
belongs. 

The  captain,  in  carrying  out  the  formalities  which  \w  is 
bound  to  fulfil,  shall  have  the  assistance  of  the  commissioned 
agents  in  countries  in  which  by  law  such  agents  exclu- 
sively exercise  this  right. 

Article  27.  Consuls,  vice  consuls  and  consular  agents 
may  go  themselves  or  send  representatives  on  board  the 
ships  of  their  nation,  after  they  have  been  admitted  to 
pratique,  to  question  the  captain  and  the  crew,  examine  the 
ship's  papers,  receive  declarations  of  their  voyage,  their 
destination,  and  the  incidents  of  the  crossing,  draw  up  mani- 
fests, and  facilitate  the  dispatch  of  the  ship;  finally,  to  ac- 
company the  men  on  board  to  the  courts  and  administration 
offices  of  the  country,  to  act  as  interpreters  and  agents  in 
the  business  which  they  have  to  transact,  or  the  requests 
which  they  have  to  make ;  except  in  cases  provided  for  by  the 
comniercial  laws  of  the  country  in  which  they  are,  to  tlie 
stipulations  of  which  they  are  bound  strictly  to  submit,  nor 
is  the  present  provision  to  be  considered  as  in  the  least  in 
derogation  thereof. 

Ajbticle  28.    The  rules  to  which  foreign  ships  in  an  open 


Status  of  Ships  and  Crews  in  Foreign  Ports       isi 

port  are  subject,  shall  be  the  same  in  principle,  barring  the 
exceptions  which  may  result  from  treaties,  for  all  ships  with- 
out distinction  of  nationality. 

Aeticle  29.  Ships  of  every  nationality,  by  the  mere  fact 
that  they  are  m  a  port  or  in  a  portion  of  the  sea  under  the 
same  rule  shall  be  subject  to  the  jurisdiction  of  the  coun- 

^'  T  l^r  "  "'^  distinction  between  acts  committed  on 
board  and  those  committed  on  land. 

Misdemeanors  committed  on  a  m'erchant  ship  at  sea  shall 
not  come  under  the  cognizance  of  the  authoi  ty  of  the  port 
at  which  they  land ;  but,  in  case  of  the  flight  of  a  ship  to  pro- 
tect persons  on  board  from  actions  against  them  because  of 
acts  committed  m  a  port,  it  may  be  pursued  on  the  high  seas 
as  provided  m  Article  8,  section  2,  of  the  rules  adopted  by 
the  Institute  governing  territorial  waters 

Article  30.  Acts  committed  on  board  ships  in  a  port, 
which  are  mere  infractions  of  discipline  and  the  professional 
duties  of  a  sailor  are  excepted  and  come  only  under  the 
national  jurisdiction  of  the  vessel.  The  local  authority  shall 
refrain  from  interfering,  unless  his  cooperation  shall  be 
regularly  requested,  or  unless  the  act  shall  be  such  as  to  en- 
danger  the  peace  of  the  port.  Even  in  this  last  case,  local 
courts  niay  take  cognizance  only  if  the  act.  besides  being  an 
infraction  of  discipline,  is  at  the  same  time  a  misdemeanor 
under  the  common  law. 

Article  31.    When  proceedings  shall  be  directed  against 
a  nian  on  board  by  the  authority  of  the  country,  notice  of 
shall  immediately  be  given  to  the  consular  authority  of 
tlie  toreign  country  in  whose  district  the  ship  is 

When  the  local  authority  is  competent,  it  may  undertake 
on  board  the  ship  investigations,  verifications,  and  examina- 
«nts  law  ""^^*''  '"  ''"'"^''""•^y  ^»*h  the  provisions 

If  an  agent  of  the  nation  to  which  the  ship  belongs  is  in 
tlie  ne,^,hborhood,  he  shall  be  notified  in  advance  of  the  visit 
wl.Kli  is  to  take  place  on  board,  and  of  the  hour  when  it  is 
to  occur,  and  he  shall  be  invited  to  take  part,  if  he  thinks  it 
advisable,  personally  or  through  a  representative  provided 


t 


*i 


:S# 


h'>^     V- 


152    Reaolutiona  of  the  Institute  of  International  Law 

with  the  proof  of  his  authority;  but  his  absence  shall  not  in 
any  way  whatever  prevent  judicial  proceedings. 

Article  82.  All  disputes  between  members  of  the  crew, 
or  between  them  and  their  captain,  or  between  captains  of 
different  vessels,  of  one  nation  in  the  same  port,  over  the 
hiring  of  seamen  or  like  questions,  shall  be  settled  without  the 
interference  of  the  local  authorities. 

In  replying  this  rule,  persons  engaged  in  the  fitting-out 
of  the  vessel  and  carried  on  the  muster-roll,  whatever  their 
true  nationality,  are  assimilated  to  persons  belonging  to  the 
nationality  of  the  ship. 

Article  88.  Disputes  of  a  civil  nature  between  persons 
not  on  board  the  ship  and  captains  or  members  of  the  crew, 
are  judged  according  to  the  common-law  rules  of  com- 
petence, and  are  not  reserved  exclusively  for  the  authorities 
of  the  ship's  nationality. 

Disputes  which  may  arise  concerning  the  settlement  of 
disbursements  and  charges  in  a  port  against  a  foreign  ship 
which  has  entered  it,  whether  voluntarily  or  through  neces- 
sity, are  under  the  jurisdiction  of  the  territorial  judge  and 
shall  be  adjusted  by  application  of  the  provisions  of  the  law 
that  he  administers. 

Competence  with  regard  to  actions  arising  out  of  the  col- 
lision of  two  foreign  ships  shall  be  governed  by  the  Resolu- 
tions adopted  by  the  Institute  on  disputes  arising  out  of 
collisions  at  sea. 

Article  34.  Captains  of  merchant  ships  in  a  foreign 
port  shall  not  take  on  board  any  individual,  even  if  he  is  one 
of  their  nationals,  who  shall  seek  refuge  on  such  sliijjs  to 
escape  from  the  consequences  of  violating  the  laws  to  wliicli 
he  was  subject  through  residence. 

If  a  person,  on  board  under  these  conditions,  is  claimed 
by  the  territorial  authority,  he  shall  be  given  up  to  this 
authority,  in  default  of  which,  this  authority  has  the  riglit. 
after  having  previously  notified  the  consul,  to  prated 
through  its  agents  to  the  arrest  of  such  person  on  the  ship. 

Article  35.  With  regard  to  deserters  from  merchant 
ships,  the  provisions  of  Article  22  shall  be  conformed  with. 


Status  of  Ships  and  Crews  in  Foreign  Ports       158 

Deserters  belonging  to  the  nationality  of  the  country 
where  the  ship  ,s  shall,  however,  not  be  given  up  to  the 
authorities  on  board  by  the  local  authorities 

Ahticle  36  Foreign  ships  anchored  in  a  port  are  sub- 
C^JZ  f  '"''"'"  f  '^'  '^^"^*  °^  *  «°^*  decision  in 
S^W  th^TaT"'"'  *""^^*'""  ^^  °^  '''''  --^-^ 

It  is  however,  to  be  hoped  that  the  law  will  forbid  the 
seizure  of  a  foreign  ship  anchored  in  a  port,  when  it  is  ready 
t  Th"  1  ^"^  d^btsjontracted  for  the  voyage  about  to 
be  made ;  and  even  in  this  case,  security  for  the  debts  shall 
permit  its  release. 

The  officers  of  the  court  and  those  entrusted  with  the 
execution  of  decisions  shall  be  authorized  to  serve  all  notices 
and  to  carry  out  all  executions  on  foreign  ships,  in  conformity 
with  the  laws  of  procedure  applicable  to  national  ships  S 
out  being  obi  Ted  to  have  recourse  to  the  intervention  o7  the 
consuls  or  commercial  agents,  even  when  present,  of  the 
nation  to  which  the  ship  belongs 

Article  87.  Public  officials,  registrars  of  births,  deaths 
and  marriages,  notaries  and  others,  requested  to  perform 
acts  m  connection  with  their  duties  or  offices,  on  board  foreT^ 
vessels  at  anchor  in  port  must  comply;  and  their  aXa^ 
cepted  in  the  form  and  under  the  conditions  prescrTbad  by 

rfh'T'K!''""  ^T  '^'J^"^'  '^'''  «"d  the  same  forces  if 
hey  had  been  performed  by  the  public  officials  on  land  within 
their  territorial  district. 

Part  II.— Coercive  .Measures  and  a  State  of  War 

ohntT'"'''^  ^\  ^"^  embargo  put  upon  foreign  ships  an- 
hored  ,„  a  port  can  not  be  justified  except  as  a  measure 
01  retorsion  or  reprisal 

StaJe  aTd'bTitt'offi:^''  '"''*  ''"^"^' '"  '""^  "^"'^  °^  *^^ 
and'l'^  ^'''  ^\rf^^^'.  ^^^  '^^'""^  '''^''^  have  prompted  it 

re  t     s'ubtff'r*""  '^'^'  ^^  ""'^^  ^^^  ^  those  who 
are  tiie  subject  of  the  measure. 


I 


pt. 


154    Reaolutioru  of  the  Institute  of  Intermtional  Law 

The  embargo  shall  be  raised  as  soon  as  the  satisfaction 
asked  for  has  been  accorded.  In  default  of  satisfaction,  the 
ship  on  which  the  embargo  rests  may  be  sold,  and  the  pro- 
ceeds of  the  sale  shall  go  to  the  State  that  imposed  the  em- 
bargo. 

Abticle  89.  The  right  of  angary  shaK  I  abolished, 
both  in  time  of  peace  and  in  time  of  war,  where  neutral  ships 
are  concerned. 

Article  40.  War-ships  which,  at  the  beginning  of  hos- 
tilities or  at  the  time  of  the  declaration  of  war,  shall  be  in 
an  enemy  port,  shall  not  be  subject  to  seizure,  during  a 
period  to  be  fixed  by  the  authorities.  During  this  period, 
they  may  discharge  their  cargo  and  take  on  another. 

Abticle  41.  Merchant  ships  compelled  by  force  majeure 
to  take  refuge  in  an  enemy  port,  may  not  be  captured  therein. 
They  shall  be  required,  during  their  stay,  to  conform  exactly 
to  the  stipulations  of  the  local  authority,  and  to  put  to  sea 
again  within  the  period  that  shall  be  indicated  to  them. 

If  a  war-ship  shall  have  been  thus  compelled  to  seek 
refuge  in  an  enemy  port,  it  may  be  courteously  received  and 
provided  with  the  means  to  put  to  sea  again;  if  not,  it  shall  be 
regularly  captured. 

Abticle  42.  Granting  of  asylum  to  belligerents  in  neu- 
tral ports,  although  depending  upon  the  pleasure  of  the 
sovereign  State  and  not  required  of  it,  shall  be  presumed, 
unless  previous  notification  to  the  contrary  has  been  given. 

With  regard  to  war-ships,  however,  it  shall  be  limited  to 
cases  of  real  distress,  in  consequence  of :  1.  defeat,  sickness. 
or  insufficient  crew;  2.  perils  of  the  sea;  8.  lack  of  the  means 
of  subsisted"*'  or  locomotion  (water,  coal,  provisions) ;  \. 
need  of  i       > " 

A  belligtient  ship  taking  refuge  in  a  neutral  port  from 
pursuit  by  the  enemy,  or  after  having  been  defeated  by  liim. 
or  because  it  has  not  a  sufficient  crew  to  remain  at  sea,  shall 
remain  therein  until  the  end  of  the  war.  The  same  rule 
shall  apply  if  it  is  carrying  sick  or  wounded,  and  after  having 
landed  them,  is  in  condition  to  go  into  action.  The  sick  and 
wounded,  though  received  and  cared  for,  shall,  after  tliey 


Stattu  of  Ships  and  Crews  in  Foreign  Ports        153 

have  recovered,  be  also  interned,  unless  considered  unfit  for 
military  service.  "n.  iur 

Refuge  froin  the  perils  of  the  sea  shall  be  granted  to 

No  '^r  ^"T^;*«  °"'y  ^  long  as  the  dafger  lasts 
No  greater  quantity  of  water,  coal,  food  or  other  analogous 
supplies  shall  be  furnished  them  than  is  necessary  to  enable 
them  to  reach  their  nearest  national  port.  Repairs  shall  not 
be  allowed  except  so  far  as  necessary  to  enable  them  to  put 
to  sea.  Immediately  thereafter  the  ship  shall  leave  the  port 
and  neutral  waters.  *^ 

If  two  enemy  ships  shall  be  ready  to  leave  a  neutral  port 
simultaneously,  the  local  authorities  shall  set  a  sufficient 

The  Tight  of  leaving  first  shall  belong  to  the  ship  which 
entered  first,  or.  if  it  does  not  want  to  use  this  right,  to  the 
other,  on  condition  that  the  latter  requests  it  of  the  local 
authorities,  which  shall  give  the  permission  if  the  adversary, 
duly  advised,  shall  insist  upon  remaining.  If.  upon  the  de- 
parture of  a  belligerent  ship,  one  or  more  enemy  ships  are 
signaled,  the  departing  ship  shall  be  warned  and  may  be 
readmitted  to  the  port,  there  to  await  the  entrance  or  the 
disappearance  of  the  others.  To  engage  an  enemy  ship 
within  the  port  or  m  neutral  waters  is  forbidden. 

Belligerent  ships  in  a  neutral  port  shall  keep  the  peace 
obey  the  orders  of  the  authorities,  refrain  from  all  hostilities, 
sJiali  not  take  on  reinforcements  or  recruit  their  military 
forces,  shall  refrain  from  all  espionage  and  shall  not  use  the 
port  as  a  base  ol  operations. 

The  neutral  authorities  shall  see  that  the  provisions  of 
this  article  are  respected,  using  force  if  necessary. 

The  neutral  State  may  require  an  indemnity  from  the 
belligerent  whose  lawfully  interned  forces,  or  whose  sick  and 
wounded.  It  has  supported,  or  whose  ships  have,  either  in- 
advertently or  by  violation  of  the  order  of  the  port,  caused 
expense  or  damage. 

Article  43.  An  attack,  begun  on  the  high  seas  and 
pursued  in  a  neutral  port  or  roadstead  where  a  ship  has  taken 
lef  uge,  IS  a  violation  of  neutral  territory.    It  must  be  checked 


hi  - 


i 


.1  % 


I . 


156    Resolution*  of  the  Institute  of  International  Law 

by  the  territorial  power,  by  the  use  of  force  if  necessary,  and 
may  be  grounds  for  an  indemnity. 

Ahticij!;  44.  In  regard  to  belligerents  bringing  a  prize 
into  a  neutral  port,  the  Institute  refers  to  the  rules  laid  down 
in  its  Regulations  for  naval  prizes. 

Article  45.  Freedom  of  commerce  is  ensured  to  neu- 
trals. Belligerents  may  not,  as  such,  forbid  or  prevent  their 
entering  ports,  either  of  neutral  nations,  or  of  belligerents, 
with  the  exception  of  those  ports  regularly  blockaded. 

Consequently,  neutrals  may  leave  an  enemy  port  to  go  to 
a  neutral  port  or  to  another  enemy  port.  They  are  free  to 
carry  into  belligerent  ports  all  goods  not  comprised  in  the 
list  of  articles  considered  contraband  of  war. 

Article  46.  \eutral  ships  admitted  into  belligerent 
ports  shall  submit  to  all  visits  necessary  to  ascertain  the  chnr- 
acter  of  the  personnel  and  the  nature  of  the  goods  on  board, 
and  to  all  measures  taken  in  the  interest  of  the  safety  of  the 
State  to  which  the  port  belongs.  In  case  of  resistance,  the 
execution  of  these  measures  may,  if  necessary,  be  secured  by 
the  use  of  force. 


APPLICATION  OF  THE  PRINCIPLES  OF  THE 
GENEVA  CONVENTION  TO  NAVAL  WAR- 
FARE' 

The  question  was  introduced  at  the  meeting  at  Copenhagen  in  Isp: 
by  Messrs.  Renault  and  Westlakc,  who  agreed  to  make  a  report  upon 
the  subject.  At  the  Neuchatcl  meeting  in  1900,  the  reporters,  afttr 
having  st.'-'id  the  fact  of  the  adhesion  of  twenty-six  Powers  to  the  Con- 
vention signc.'  at  The  Hague,  July  26,  1899,  expressed  regret  that  the 
contingency  contemplated  by  Article  10  of  the  Convention  had  not  Wen 
provided  for,  on  account  of  reservations  made  by  certain  of  the  Powtr?.' 
After  the  discussion,  which  took  place  September  7,  1900,'  the  Institute 
adopted  tile  following  resolution:  * 

The  Institute  utters  a  vccu  in  favor  of  concludini:  a 
complementary  convention  containing  the  provision  of  Ar- 
ticle 10  of  the  Hague  Convention. 


^  Annuaire,  vol.  30,  p.  363. 
'  Ibid.,  vol.  1»,  p.  to. 


•  Ibid.,  p.  229. 

'Ibid.,  p.  iTJl;  vol.  .'0,  p.  36.1. 


Selatkmt  of  Foreign  Govcnmail.  to  lmumct!om    157 

Aa    it±.LTARDS    THE    ESTARI  mHPn     Avr» 

RECOGNIZED  GOVERNMENTS  IV  ??sFnv 
INSURRECTION'  ^*^^^^J»  IN  CASE  Ol 

accepts  the  office  of  reporters      At  H.  f    '"''""  ^'  ^'"■"«-  "f'" 

Mr/De.j-rdins,  in  co Ka.L  t  th    1"";"^  "'  J^^  H,^e  in  ,8y«, 

report  .„d.  draft  of  regulations  ifel  J  ntX  ^  It  Tinft"''  ^ 
Nenchitel  in  I900.  the  discussion  in  nl..;  .  .        '"<•«*'"(?  at 

7th  and  8th  of  SepUberTand  resulted  in    [Lrn'r  ^^^^.^'f"  ""  *''' 
of  the  followi,.g  conclusions :«  "'^°''"°"  °"  *''*^^  ^'"^^'^^  ^ate 

struggling  with  an  insurrection. 

».^TS;e„fc'-,  -- ]«  ^o..   a. 

Section-  2.    It  is  bound  not  to  furnish  to  the  insnr 

SECTION  3.    It  IS  especially  forbidden  for  anv  tliirH 
t.r;^°  '^^^  '  ^"'^^''^  ""'itary-expedition  aVainst-  an  e 
!il  Sin      ""^'"'  ^"'™^"*  *^  ^^^  -^---J  -^'^n 

hose  whnt'J    ^P  '^^  ^^"^  '^""^  repressive  nieasures  to  all 
tneirnationality.    I  nusually  cruel  punishments  are  excepted 


51 


'  /6,(/.,  vol.  20,  p.  316. 

'Ibid,      vol      17      r,      TI 


'/'..(/..  vol.    Ih,  p.    IS^J. 
'  jbid  .  jj.  .V7. 


1 


158    Reaolutions  of  the  Institute  of  International  Law 

and  those  punishments  which  evidently  exceed  the  bounds  of 
necessity. 


Chaptek  II.- 


-On  the  Recognition  of  Insurgents  as 
Belligerents 


Article  4.  Section  1.  The  government  of  a  country 
where  a  civil  war  has  broken  out  may  recognize  the  insurgents 
as  belligerents  either  explicitly  by  a  categorical  declaration, 
or  implicitly  by  a  series  of  acts  which  leaves  no  doubt  as  to 
its  intentions. 

Section  2.  The  simple  fact  of  applying,  for  hu- 
manitarian reasons,  certain  laws  of  war  to  the  insurgents, 
does  not  in  itself  constitute  a  recognition  of  a  state  of  bel- 
ligerency. 

Section  8.  A  government  which  has  recognized  its 
revolting  nationals  either  explicitly  or  implicitly  as  bellig- 
erents, becomes  powerless  to  criticise  the  recognition  ac- 
corded by  a  third  Power. 

Article  5.  Section  1.  A  third  Power  is  not  bound  to 
recognize  insurgents  as  belligerents  merely  because  they  are 
recognized  as  such  by  the  government  of  the  country  in 
which  a  civil  war  has  broken  out. 

Section  2.  As  long  as  it  has  not  itself  recognized  tlie 
belligerency,  it  is  not  required  to  respect  blockades  estab- 
lisheid  by  the  insurgents  along  those  portions  of  the  seacoast 
occupied  by  the  regular  government. 

Article  6.  A  government  which  has  recognized  its  re- 
volting nationals  as  belligerents  cannot  consider  it  a  cause  of 
complaint  against  a  third  Power  that  it  receives  those  ariiiid 
insurgents  who  take  refuge  on  its  territory  kindly,  disarming 
them  and  interning  them  until  the  end  of  hostilities. 

Consequently,  it  is  powerless  to  object  if  its  own  soldiers, 
refugees  in  the  same  territory,  are  disarmed  and  interned. 
It  is,  moreover,  liable  to  indemnity  only  for  the  support  of 
its  own  troops. 

Article  7.  If  the  belligerency  is  recognized  by  third 
Powers,  such  recognition  entails  all  the  usual  consequences 
of  neutralitv. 


nt 


Relations  of  Foreign  Government,  to  Insurrections    139 

^"^^/Si-^-    '^^'^  ^°^^"  '^»""«t  recognize  the  char- 
acter of  belhgerent  in  a  revolutionary  party: 

Section  l.    If  it  has  not  acquired  a  distinct  t(>rpi 

Section  2  If  it  has  not  the  elements  of  a  regular 
government  exercsmg  in  fact  the  manifest  rights  of  sover- 
eignty over  this  portion  of  the  territory 

Section  a.  If  the  fight  is  not  carried  on  in  its  name 
by  organized  troops,  subject  to  n.ilitary  discipline  and  coT 
formmg  to  the  laws  and  customs  of  war 

Article  9.  A  third  Power  may.  after  having  recognized 
the  msurgents  as  belligerents,  withdraw  such  recognition 
even  when  the  situation  of  the  parties  in  the  struggle  has 
not  been  changed.  Such  retraction  has.  however,  no  retro- 
active  effect. 


REGULATIONS  RESPECTING  THE  RESPONSI 
BILITY  OF  STATES  BV  REASON  OF  DA^r 
AGES  SUFFERED  BY  ALIENS  I\  CASE^F 
RIOT,  INSURRECTION  OR  CIVILVVAR? 

18oT''\T"*'°"  .''.f  P'""''  °"  'he  program  at  the  Hamburg  session  of 

his  report  with  drTft  r  so  utls /'  JtThe^eTZ'of  N'  ^'.^/.-'""»« 
new  theses  were  presented  by  Xssr^  Brusra'd  vo„  Bar"    The".' ^°' 

be  L  J"^f  P^"^^^"*'>'  «f  the  cases  in  which  indemnities  may 
be  due  to  aliens  by  virtue  of  the  general  laws  of  the  country! 
aliens  have  a  right  to  compensation  when  they  are  injurTd 

insurrection,  or  of  a  civil  war: 

^Ja)^   When  the  act  from  which  they  have  suffered  is 


|./i.nHa.r^vol.  20,  p.  312.  '/fcid..  vol    !« 

'!"d.,vol  17,  p.  96.  .//.W.,  p.  233.' 


p.  47. 


'  IbH.. 


?3i. 


11' »■ 


'?1 


100    Retolutions  of  the  Institute  of  International  Law 

directed  against  aliens  as  such  in  general,  or  against  them 
as  reaBortiinantt  of  a  particular  State,  or 

{b)  When  the  act  from  which  they  have  suffered  con- 
sists in  closing  a  port  without  previous  and  timely  notifica- 
tion, or  in  detaining  foreign  ships  in  a  port,  or 

(r)  When  the  injury  is  the  result  of  an  illegal  act  com- 
mitted by  a  government  agent,  or 

(d)  When  the  obligation  to  compensate  is  well  founded 
on  the  general  principles  of  the  law  of  war. 

2.  The  obligation  is  equally  well  founded  when  the  in- 
jury has  been  committed  (No.  1,  a  and  d)  on  the  territory 
of  an  insurrectionary  government,  either  by  this  govern- 
ment itself,  or  by  one  of  its  functionaries. 

On  the  other  hand,  certain  demands  for  indemnity  may 
be  set  aside  when  they  rest  on  acts  occurring  after  the  gov- 
ernment of  the  State  to  which  the  injured  person  belongs 
has  recognized  the  insurrectionary  government  as  a  bellig- 
erent Power,  and  when  the  injured  person  has  continued  to 
keep  his  domicile  or  his  habitation  on  the  territory  of  the 
insurrectionary  government. 

As  long  as  the  latter  is  considered  as  a  belligerent  Tower 
by  the  government  of  the  person  alleged  to  be  injured,  the 
demands  may  only  be  addressed,  in  the  case  of  paragraph  1 
of  Article  2,  to  the  insurrectionary  government  and  not  to 
the  legitimate  government. 

8.  The  obligation  to  compensate  disappears  when  the  in- 
jured persons  themselves  have  caused  the  event  which  has 
brought  on  the  injury.  Notably  no  obligation  exists  to  in- 
demnify those  who  have  returned  to  the  country  in  contra- 
vention of  a  decree  of  expulsion,  nor  those  who  betake 
themselves  to  a  country  or  seek  to  engage  in  commerce 
or  industrv  there,  when  they  know,  or  ought  to  know,  that 
troubles  have  broken  out  there,  nor  those  who  establish 
themselves  or  sojourn  in  a  country  which  offers  no  security 
on  account  of  the  presence  of  savage  tribes,  unless  the 
government  of  the  country  has  given  express  assurances  to 
the  inunigrants. 

4.    The  government  of  a  federal  State  composed  of  a  cer- 


Raponsibility  of  State,  for  In  June,  to  Alien,      161 

Uin  number  of  smaU  States,  which  it  represents  from  an  in 
ternat.on.1  point  of  view,  may  not  plJJXTrlrlZZ 
the  respon».b..ty  resting  upon  it.  the  fact  that  the  conS 
t.on  of  the  t^eral  State  does  r...t  give  it  the  rigS  to  con   "» 
the  member  States,  nor  the  right  to  exact  fronHhen.  tl^d  s- 
charge  of  their  obligations. 

a.    The  stipulations  mutually  exempting  States  from  the 
duty  of  givmg  their  diplonmtic  protection  ought  to 

cover  the  cases  of  denial  of  justice  or  of  evident  viola  on  o? 
justice  or  mtemational  law.  violation  ot 

Fa:r.\ ' 

\Jh  Institute  of  International  Law  expresses  the 
r^u  that  States  avoid  inserting  in  treaties  ela^.f  rcc  p! 
rocal  absence  of  responsibility.  It  klieves  that  these  clau  es 
are  wrong  m  excusing  States  from  accomplishing  their  dutT 
of  protection  of  their  nationals  abroad  «,ul  their  dut^^,f  pro- 

Sr-n    '^''"'  '"  *'T  '"'"'"''y-    It  '>t>licves  that  Sta  es 
wh  ch  in  consequence  of  extraordinarv  circumstances  do  n 
feel  themselves  m  a  position  to  ensure  in  a  suffieien  h-  effica- 
cious  manner  the  protection  of  aliens  o,.  their  tc^r  torv  cnn 
stl  Tf  J?"""  '^T'^"^''  ^••""^  the  consequence    of  t^  i" 

to  il.^T"'f**°u"*^?"*'°"«'  commissions  of  inquiry  and 
to  international  tribunals  is  in  general  recommended  ^,rdl 
differences  that  may  arise  from  injuries  suffered  by  ^ens 
during  a  not,  an  insurrection,  or  a  civil  war 


SUBMARINE  CABLES  IX  TIME  OF  WAR ' 

»«d.-  by  the  author  of  these Zso,      Mr  Tou  J  rT'";"'"'  ''"  '  "'""' 
Ijlitu.  stated  his  opinion  on  the  VroJll^^^^Ztr^'^-^^ 


'Annuaire,  vol.  18,  p.  253. 
'Ibid.,  vol.  20,  p.  346.     See  al  ,o  ante,  p.  n 
Amuair^,  vol  19,  pp    u  rt  ,cci 


'Ibid.,  p.   18. 


162    Retdutimt  of  the  Institute  of  International  Law 

were  llkcwite  propoMd  by  Mmrt.  Holland  and  Pereli  and  aatae  rcmarki 
were  made  by  Oenrral  den  Beer  Poortugael. '  The  dlacuislon  took  pUco 
in  plenary  leuion  September  X«  and  ti,  1 908.'  The  Institute  adoptni 
the  foUowing  rules: ' 

1.  A  submarine  cable  connecting  two  neutral  territorieii 
is  inviolable. 

2.  A  cable  connecting  the  territories  of  two  belligerents 
or  two  parts  of  the  territory  of  one  of  the  belligerents  may 
be  cut  anywhere  except  in  the  territorial  sea  and  in  the  neu- 
tralized waters  appertaining  to  a  neutral  territory  ("  ntii- 
tralized  "  by  treaty  or  by  declaration  in  accordance  with 
Article  4  of  the  Paris  resolutions  of  1894).* 

8.  A  cable  conn'>cting  a  neutral  territory  with  the  terri- 
tory of  one  of  the  belligerents  can  in  no  case  be  cut  in  the 
territorial  sea  or  in  the  neutralized  waters  appertaining  to 
a  neutral  territory. 

On  the  high  sea  such  a  cable  can  only  be  cut  if  there  is 
an  effective  blockade  and  within  the  limits  of  the  line  of 
blockade,  subject  to  the  repair  of  the  cable  within  the 
briefest  possible  time.  Such  a  cable  can  always  be  cut  in 
the  territory  and  in  the  territorial  sea  appertaining  to  enemy 
territory  up  to  the  distance  of  three  marine  miles  from  low- 
water  mark. 

4.  It  is  understood  that  the  liberty  of  the  neutral  State 
to  transmit  dispatches  does  not  imply  the  right  to  make  use 
or  permit  use  thereof  manifestly  for  the  purpose  of  lending 
assistance  to  one  of  the  belligerents. 

5.  In  applying  the  preceding  rules,  no  difference  is  to 
be  made  between  State  cables  and  cables  owned  by  individ- 
uals, nor  between  cables  which  are  enemy  property  and  those 
which  are  neutral  property. 


>^iinuair«,  vol.  19,  pp.  301  tt  t*q. 
'Ibid.,  pp.  305  ((  ttq. 


*Ibid..  p.  3;1I. 
'Ante.  p.   lU. 


The  Hague  Court  of  Arbitration 


108 


INTERNATIONAL  TRIIUt\alS-THE  HAGITF 
COURT  OF  ARBITRATION  • 

CONCEININO  THK  CONSTITUTION  OP  Onf  OB  MoiF   Ivt« 
NATIONAL  TEIBtrNAU.  ClUHOEU  WITH  Ix^KipH^Jiv^^; 

Con^-entionh  of  Intfjinational  irxioNs 

Convrnlion  of  Bcrnc  of  ScpuX,  g  fHr''V .P'""  '''/^•^'•"'"  "t  the 
lit««r.y  and  arti.lic  work.  "At  t^;  L    .•  "■'""*:•.»»  »'"•  Protection  of 

At  the  meeting  a,  Bru«el,  i„  TJoa  mI  T^«  '"'"''"T''  ^^  P'OP""!*' 
project  contemplatinR  the  creat  on  of  inui.^'ri'T'/"'";'''?"^'*  '  ""^ 
the  international   union..*     After  a  .holf  J^^  '''".""'*  '"'  "«^»'  »' 

postponed  until  the  next  meeUnl"  At  them  ,""'""•.•  V"^.  '''"^•»'''"  *" 
the  di.cu.«„„  wa.  re.umed  aX.ulld  In TheTf  'l^''^'"^":^*'  '"  '»«*. 
rewlution  propo.ed  by  Mr.  Merbur^cr:'  **         "'  """  '''"°*i'>» 

The  Institute  of  In..rnationaI  Law  holds  that  in  case  of 
chver^ent  interpretations  of  international  eonvenlns  the 
Kovernments  should  have  recourse  to  the  intervention  of  he 
Permanent  Court  of  Arbitration  at  The  Hague 


IF' 

n 

•Si 

li 


it 


OPENING  OF  HOSTILITIES 

da.T;^h:tolci!in"^r!"°lt1h:v/r  ^'r'  -" '''  "^'^  "^  *•><' 

Alberic  Rolin  made  "  JSLin^rV  r  ^rt'"  7f  er'f^Hh  'r  'I'^l  ''"  '"■ 
uittee.  in  which  tho  r.!^^  k  j-\,'^*^P°"-  ^"f'  further  studv  in  coin- 
I.nT  V  y,.  '"'/fPortf'  had  the  assistance  of  Messrs    Renault    H,w 

report  in  the  plenary  .e.sion  o  S  p  ..1,  J  and  20  "^.rp"  rl"'" 
tl-ou^h  discu..ion  adopted  the  f<^lo.!:; ZTIZ' LT^.^^r^  "''''  " 

'Annuair,,  vol.   30.  p.  370.  .  ,. ,  .     „    „. 

'/6.d.,  vol.   14.  p.  JsS  .„r^\ 

•/fcirf.,  vol.  16.  p.  106.  ,. ,,  ;       •'• ''  -^ 

•/6«..vol.  19.P.  333  ..ff'^''-' 

•/fcirf..  p.  334  /W.  p.  il. 

'/("•<*..  vol.  30.  p.  310.  :.■''"'!'  P-'"' 


164    Resolutions  of  the  Institute  of  International  Law 

Resolxttions 

1.  It  is  in  accordance  with  the  requirements  of  inter- 
national law,  and  with  the  spirit  of  fairness  which  nations  owe 
to  one  another  in  their  mutual  relations,  as  well  as  in  the  com- 
mon interest  of  all  States,  that  hostilities  must  not  commence 
without  previous  and  explicit  warning. 

2.  This  warning  may  take  place  either  under  the  form 
of  a  declaration  of  war  pure  and  simple,  or  under  that  of  an 
ultimatum,  duly  notified  to  the  adversary  by  the  State  about 
to  commence  war. 

8.  Hostilities  shall  not  commence  before  the  expiration 
of  a  delay  sufficient  to  make  it  certain  that  the  rule  of  pre- 
vious and  explicit  notice  cannot  be  considered  as  evaded. 


VCEU 

The  Institute  of  International  Law  utters  the  vaeu 
that  the  States  be  actuated  by  the  preceding  principles  in 
their  conduct  and  for  the  conclusion  of  international  con- 
ventions. 


INTERNATIONAL    REGULATION    OF    WIRE- 
LESS TELEGRAPHY 

This  subject  was  added  by  the  Council  *  to  that  of  the  legal  status  of 
air-ships  upon  wh-ch  Messrs!  Fauchille  and  Nys,  as  reporters,  had  pre- 
sented reports,  the  two  subjects  having  the  same  fundamental  difficulty, 
that  of  the  nature  of  the  air  and  the  rights  of  States  to  the  atmosphere. 
Accordingly,  Mr.  Fauchille  presented  to  the  Institute,  at  the  request  of 
the  Council,  draft  regulations  and  a  report  on  the  status  of  wireless  teltg- 
raphy"  at  its  Ghent  session  in  1906.  The  Institute  considered  the  draft 
in  the  meetings  of  September  22  and  2i,»  and  adopted  the  following 
text: 

Pheliminaey  Provisions  * 

Article  1.  The  air  is  free.  States  have  over  it,  in  time 
of  peace  and  in  time  of  war,  only  the  rights  necessary  for 
their  preservation. 


'  Annuaire.  vol.  91,  p.  917. 
'Ibid.,  p.  7«. 


■  Ibid.,  pp.  993  «(  itq. 
•  Ibid.,  p.  327. 


Wireless  Telegraphy  155 

ARTICLE  2.  In  the  absence  of  special  provisions,  the 
rules  applicable  to  ordinary  telegraphic  correspondence  are 
applicable  to  wireless  telegraphic  correspondence. 

Paet  I.— Time  of  Peace 

Aeticle  8.  Each  State  has  the  right,  in  the  measure 
necessaiy  to  its  security,  to  prevent,  above  its  territory  and 
Its  territorial  waters,  and  as  high  as  need  be.  the  passage 
of  Hertzian  waves  whether  they  issue  from  a  govern- 
ment apparatus  or  from  a  private  apparatus  situated  on 
land,  on  a  vessel,  or  on  a  balloon. 

wJrptfr ''♦'1  *■  ^u  '"'"'^''^  prohibition  of  correspondence  by 
Tolffv  th.  T^P^^'  ^^'  S«vermnent  must  immediately 
decrees.  governments  of  the  prohibition  which  it 

Part  II.— Time  of  War 

Article  5.    The  rules  accepted  for  time  of  peace  are 
m  principle,  applicable  to  time  of  war.  ^  ' 

in  thf  ""i!^  ^'  .^"  *^  ^'^^  '^^'  •"  *he  zone  corresponding 
0  the  sphere  of  action  of  their  military  operations   bellig 

sTbjIct"''^  ^'''^'"*    ''"''''°"  "^  ^^''''  ^^^"  ^y  ^  "«"t^^l 

Article  7.    Individuals  are  not  considered  as  war  spies 
but  should  be  treated  as  prisoners  of  war  if  captured  Xn.' 

rre'.!^*^^'"^!*''*'"^^      '^'  b^W'gerent.  they  transmi 
or  receive  wireless  dispatches  between  the  different  parts  of 
an  army  or  of  a  belligerent  territory.    The  contrary  should 
pretenses  correspondence   is   had    under    false 

-r.'^^^  ^fY^"  °^  dispatches  sent  by  wireless  telegraphy 
are^a^similated  to  spies  when  they  employ  dissimula?ion  or 

Xeutral  vessels  and  balloons  which,  through  their  com- 
rrv/r  "'*^^  ^"r--  -»  •^^  considered^s  placed  "t 
IndTn  r^  xr  ^""fi^^'-^t"!  ««  well  as  their  d^patches 
and  apparatus.     Xeutral  subjects,  vessels,  and  balloons,  if 


iV^ 


■I"      s. 


166    Resolutions  of  the  Institute  of  International  Law 

it  is  not  established  that  their  correspondence  was  intended 
to  furnish  the  adversary  with  information  relating  to  the 
conduct  of  hostilities,  may  be  removed  from  the  zone  of 
operations  and  their  apparatus  seized  and  sequestered. 

Ahticle  8.  A  neutral  State  is  not  obliged  to  oppose 
the  passage  above  its  territory  of  Hertzian  waves  destined 
for  a  country  at  war. 

Article  9.  A  neutral  State  has  the  right  and  the  duty 
to  close  or  take  under  its  administration  an  establishment  of 
a  belligerent  State  which  it  had  authorized  to  operate  upon 
its  territory. 

Article  10.  Every  prohibition  of  communicating  by 
wireless  telegraphj  formulated  by  belligerents  should  be 
immediately  brought  by  them  to  the  notice  of  the  neutral 
governments. 


SUBMARINE  MINES 


The  question  of  the  international  regulation  of  the  use  of  automatic 
torpedoes  in  the  open  sea  was  placed  on  the  order  of  the  day  in  the  Edin- 
burgh session,  \90l,  at  the  instance  of  Mr.  Kebcdgy,  who  was  appointtd 
reporter.' 

It  was  later  modified  by  the  Bureau  of  the  Institute  '  to  read  "  Intrr- 
national  regulation  of  the  use  of  submarine  mines  and  automatic  tor- 
pedoes." Mr.  Kebedgy,  who  was  assisted  by  Messrs.  Brusa,  Du|)uis. 
Engelhardt,  Kaufmann,  Politis  and  Alb^ric  Rolin,  made  his  report,'  ne- 
companied  by  proposals  to  the  Ghent  session  in  1906.  The  Institute  dis- 
cussed the  subject  in  plenary  session  September  25,  I906,*  and  tentative 
resolutions  '  were  adopted  to  be  discussed  at  a  subsequent  session.  In 
I9O8  Mr.  Edouard  Rolin,  who  had  been  associated  with  Mr.  Kclxdcv 
as  reporter,  filed  an  amended  project,'  which  had  been  harmonized  with 
the  deliberations  of  the  Second  Hague  Peace  Conference.  This  projeet, 
after  being  discussed  by  the  Institute  in  the  sessions  of  September  'ii)  iiid 
30,  19O8.'  was  recommitted,  conformably  to  the  wishes  of  its  author.  At 
Paris  in  19IO  the  Institute  had  before  it  a  further  report'  by  Mr.  Rolin. 
which  it  discussed  in  the  meetings  of  March  31,  April  1  and  April  i* 
with  the  result  that  the  first  five  articles  below  were  adopted.     The  rc- 


•  Annuaire,  vol.  20,  p.  233. 
"  Ibid.,  vol.  21,  p.  88. 
'  Ibid.,  pp.  88,  99. 


« Ibid.,  p.  3.30.  '  Ibid.,  vol.  21.  p.  ■?; 

■/61U,  p.  344.  'Ibid.,  vol.  '23,  p.  IT 

•Ibid.,  vol.  22,  p.  1S6.      •/6irf.,  p.  4». 


Submarine  Mines  jg^ 

But  It  IS  forbidden  even  in  these  territorial  waters-  ^  to 
lay  unanchored  automatic  contact  mines  unleTs  thev  aJe  so 
constructed  as  to  become  harmless  one  hour  at  most  Ster 
t..  person  who  la.d  them  ceases  to  control  them-  T2)  to  lav 

^    naTthrhl^^^^  ^''^^'°  "«*  become  LI^IsV:^ 

'      At    ^  it  ^^''''^"  ^°°'^  f '•o™  their  moorings 

Aeticle  8.    It  is  forbidden  to  make  use.  ei?he;  in  terri 
orial  waters  or  on  the  high  sea,  of  torpedoes  ^hiA  do  not T 
come  harmless  when  they  have  missed  their  mark 

coastTnZoVof'fh'""'"*  ''  ''"r^"  *«  '^^  ™-  ^^  ^^e 
toasis  ana  ports  of  the  enemy  only  for  naval  nnri  r     > 

purposes.     He  is  forbidden  to  lay  thl Xl Tn  7 

establish  or  maintain  a  commercial  b£ie  ""''''  *° 

Aeticle  5.    When  anchored  or  unanchored  automat,',. 

Article  6    A  neutral  State  may  lav  mines  in  its  terri 
oml  waters  for  the  defense  of  its  neutraliTv     I    should    n 
h.s  case,  observe  the  same  rules  and  take  tL  same  precai" 
tions  as  are  imposed  on  belligerents.  ^ 

The  neutral   State   should   inform   ship-owners    bv  a 

S"  ThiiVot-"""'  rr  ^"*"'"^^'^  -ntaTmLs  'will 
a  J  V"^"«t'ce  must  be  conmmnicated  at  once  to  the 

g^^ments  through  the  diplomatic  channel 

'Ibid.,  ml,  Ji,  pp,  JS6  ff  ,fj.,  301. 


f 
t 

I 


168    Resolutions  of  the  Institute  of  International  Late 

Article  7.  The  question  of  the  laying  of  mines  in  straits 
is  reserved,  both  as  concerns  neutrals  and  belligerents. 

Article  8.  At  the  close  of  the  war  the  belligerent  and 
neutral  States  shall  do  their  utmost  to  remove  the  mines 
which  they  have  laid,  each  Power  removing  its  own  mines. 

As  regards  anchored  automatic  contact  mines  laid  by 
one  of  the  belligerents  off  the  coasts  of  the  other,  their  posi- 
tion shall  be  notified  to  the  other  party  by  the  State  which 
laid  them,  and  each  Power  must  proceed  with  the  least  pos- 
sible delay  to  remove  the  mines  in  its  own  waters. 

The  belligerent  and  neutral  States  whose  duty  it  is  to 
remove  the  mines  after  the  war  must  make  known  the  date 
at  which  the  removal  of  the  mines  is  complete. 

Article  9.  A  violation  of  one  of  the  preceding  rules  en- 
tails responsibility  therefor  on  the  part  of  the  State  at  fault. 

The  State  which  has  laid  the  mine  is  presumed  to  be  .ti 
fault  unless  the  contrary  is  proved. 

An  action  may  be  brought  against  the  guilty  State,  even 
by  individuals,  before  the  competent  international  tribunal. 


TEXT  OF  RESOLUTIONS  ADOPTED  ON  THE 
SUBJECT  OF  INTERNATIONAL  REGULA- 
TION OF  THE  USE  OF  INTERNATIONAL 
STREAMS ' 

At  the  Paris  session,  in  the  meeting  of  April  1,  1910,'  Messrs.  von 
Bar  and  Harburger  proposed  the  question:  "  Determination  of  the  rules 
of  international  law  concerning  international  streams  from  the  point  of 
view  of  the  exploitation  of  their  motive  power."  The  motion  was  adopted. 
and  Mr.  von  Bar  was  designated  as  reporter.  Mr.  von  Bar's  reports  and 
project'  were  considered  by  the  Institute  at  Madrid  in  the  meetings  of 
April  19  and  20,  1911,  and  the  iules  below  were  adopted: 

Statement  of  Reasons  * 
States  bordering  on  the  same  streams  are  in  a  condition 
of  permanent  physical  dependence  upon  each  other,  which 

'  Amuaire,  .<  I.  34,  p.  365. 

'  Ihid.,  vol.  2:i,  p.  498. 

'  Ihiil..  vol.  .>4,  pp.    IJG,  168.  180. 

*  Till-,  statement  has  not  yet  tieen  submitted  to  a  vote. 


Regulation  of  the  Use  of  Intermtional  Streams    169 

nortl' o^fJ'^'''  f  TP^"*'  '^"*°"°'"y  ^°^  «th«r  along  that 

^    C;^        naural  course  coming  under  its  sovereignty. 

International  law  having  already  considered  the  right  of 

navigation  on  international  rivers,  the  utilization  of  the  water 

XrrtSL?s;gK!*r  ^"' '-  ^'^"^  ^^ — 

It  appears  opportune,  therefore,  to  supply  this  deficiency 

Sle'tr^^*^'  "f''  '^  '"^  "^'^'^  ^"««  f'-"'"  the  unquest'oS^ 
able  interdependence  existing  between  States  bordering  on 

trl^rn  t  T'  ''"'*  '''*^"""  ^^^''  ^hose  territories  are 
traversed  by  the  same  streams. 

r.Jtj!^^^  °u  navigation,  in  so  far  as  it  has  already  been 
regulated,  or  shall  be  regulated  by  international  law,  ex- 
cepted : 

The  Institute  of  International  Law  is  of  the  opinion  that 
the  following  rules  should  be  observed  from  the  point  of 
view  of  the  utilization  (in  any  way  whatever)  of  interna- 
tional streams: 

Rules 

I.  When  a  stream  forms  the  frontier  of  two  States, 
neither  of  these  States  may,  without  the  consent  of  the 
other,  and  without  special  and  valid  legal  title,  make  or 
allow  individuals,  corporafons.  etc.,  to  make  alterations 
therein  detrimental  to  the  bank  of  the  other  State.  On  the 
other  hand,  neither  State  may,  on  its  own  territory,  utilize 
or  allow  the  utilization  of  the  water  in  such  a  way  as  seriously 
to  interfere  with  its  utilization  by  the  other  State  or  by  in- 
dividuals,  corporations,  etc.,  thereof. 

The  foregoing  provisions  are  likewise  applicable  to  a 
^   TT '",^7^*"^^^"  *^^  territories  of  more  than  two  States. 

11.  When  a  stream  traverses  successively  the  territories 
of  two  or  more  States: 

1.  The  point  where  this  stream  crosses  the  frontiers  of 
two  States,  whether  naturally,  or  since  time  immemorial, 
may  not  be  changed  by  establishments  of  one  of  the  States 
without  the  consent  of  the  other. 

2.  AH  alterations  injurious  to  the  water,  the  emptying 


I 


170    RcBolutiona  of  the  Inttitute  of  International  Law 

therein  of  injurious  matter  (from  factories,  etc.),  is  for- 
bidden. 

8.  No  establishment  (especially  factories  utilizing  hy- 
draulic power)  may  take  so  much  water  that  the  constitu- 
tion, otherwise  called  the  utilizable  or  essertial  character  of 
the  stream,  shall,  when  it  reaches  the  territory  downstream, 
be  seriously  modified. 

4.  The  right  of  navigation  by  virtue  of  a  title  recognized 
in  international  law  may  not  be  violated  in  any  way  what- 
ever. 

5.  A  State  situated  downstream  may  not  erect  or  allow 
to  be  erected  within  its  territory  constructions  or  establish- 
ments which  would  subject  the  other  State  to  the  danger 
of  inundation. 

6.  The  foregoing  rules  are  applicable  likewise  to  cases 
where  streams  flow  from  a  lake  situated  in  one  State, 
through  the  territory  of  another  State,  or  the  territories  of 
other  States. 

7.  It  is  recommended  that  the  interested  States  appoint 
permanent  joint  commissions,  which  shall  render  decisions, 
or  at  least  shall  give  their  opinion,  when  from  the  building 
of  new  establishments  or  the  making  of  alterations  in  exist- 
ing establishments  serious  consequences  might  result  in  that 
part  of  the  stream  situated  in  the  territory  of  the  other  State. 


THE  LEGAL  STATUS  OF  AIRCRAFT 

The  question  of  the  legal  status  of  aircraft  was  placed  on  tin- 
calendar  at  the  Neuchatel  session  in  1900  on  the  motion  of  Mr.  Fau- 
chillc,  who  was  named  reporter  with  Mr.  Nys.  At  the  Brussels  sission 
in  1902  Mr.  Fauehille  presented  a  report  accompanied  by  draft  rrsohi- 
tions  in  a2  articles,  and  Mr.  Nys  presented  a  second  report  •  containiriE 
observations  on  Mr.  Fauchille's  project.  At  the  close  of  the  session 
Messrs.  Fauehille  and  Nys  proposed  that  the  Institute  limit  the  discus- 
sion to  certain  questions  of  principle.  The  Institute,  on  April  1,  WiO-' 
during  its  Paris  session,  on  Mr.  Fauchille's  request,  created  a  committee 


'  Annuaire,  vol.  I'J,  pp.  I'J,  »tj. 


'  Ibid.,  vol.  13,  p.  437. 


Aircraft 


171 


to  studj  the  question  with  him.    The  reuort  >»...»-  i  j  t. 

text,'  whieh  was  discussed  at  MadridT^hpl    f.*^*""P?»l«"»  .^7  •  new 

20  «.d  *,,  19,,..    The  articles  adoJudiT^"*'  "'  April  ,8,  ,9, 

1.   Time  of  Peace 
Jni^:"  '"  """"S""*"!  -  public  .ircraf,  .nd  pri- 

The  state  in  which  registration  is  apphed  for  determines 

to  what  persons  and  under  what  conditions  registrftioTw.! 

be  granted,  suspended,  or  withdrawn.  irauon  wiu 

The  State  registering  an  aircraft  belonging  to  an  ahen 

cannot  however,  claun  to  protect  such  aircraft  in  the  terr" 

ory  of  the  owner  s  State  as  against  any  laws  of  that  State 

fortit  Sfailr'^*""''^  *°  '^"  *'^'^  ^'^^^'^^  '^«'^*"«^'^ 
8  International  aerial  circulation  is  free,  saving  the 
right  of  subjacent  States  to  take  certain  measures,  to  be  de- 
termined, to  ensure  their  own  security  and  that  of  the  per- 
sons and  property  of  their  inhabitants. 

2.   Time  of  War 
1.   Aerial  war  is  allowed,  but  on  the  condition  that  it 
does  not  present  for  the  persons  or  property  of  the  peace- 
able population  greater  dangers  than  land  or  sea  warfare 


i 

ii 


EFFECT  OF  WAR  ON  TREATIES 

« Jn 'th?"ff '\°^  ?^  ^"'"*"**"'  ''"'""K  ''^''^^^  »«  »  subject  for  investi- 
pUmn  the  effects  of  war  on  international  obligations  and  private  con- 
tact,, appointed  Mr.  Politis  reporter.     Mr.  Volitis  nmra 'iSinaTy 
'Ibid.,  vol.  24,  p.  39. 

posei  V^'m^;  r„  ir/r"'"*  '"  k"  '''''^"''''''  '""'•  P-  '*"•    S«  also  the  draft  pro- 
.   J^      •,  °"  ""'•  "  '"™'^'  °f  ">e  committee,  po.t.  p.  256 
M.,  vol.  24,  pp.  303  «(  ,e„  r      .  f 

'ibid.,  p.  346. 


i  VJ 


172    Retolutions  of  the  Itutitute  of  International  Law 

rrport  Mn  igiO.  His  final  report  *  dealt  only  with  treatief,  aa  lome  mem- 
beri  of  his  committee  had  desired  that  private  contracts  form  the  subject 
of  separate  study.  In  1912,  at  Christiania,  the  Institute  discussed  the 
project  in  the  meetings  of  August  89,  80  and  31/  and  voted  the  follow- 
ing regulations: 


f.' 


Text  of  the  Regulations  Regaboino  the  Effect  of 
Wah  on  Tbeaties  * 


I' 


Chafteb  I 

Treaties  Between  Bellioehent  States 

Article  1.  The  opening  and  the  carrying  on  of  hos- 
tilities shall  have  no  eflfect  upon  the  existence  of  treaties, 
conventions  and  agreements,  whatever  be  their  title  and  sub- 
ject, concluded  between  themselves  by  belligerent  States. 
The  same  is  true  of  the  special  obligations  arising  from 
the  said  treaties,  conventions  and  agreements. 

Article  2.    War,  however,  automatically  terminates: 

1.  Agreements  of  international  associations,  treaties  of 
protection,  control,  alliance,  guaranty:  treaties  concern- 
ing subsidies,  treaties  establishing  a  right  of  security  or 
a  sphere  of  influence,  and,  generally,  treaties  of  a  political 
nature; 

2.  All  treaties,  the  application  or  the  interpretation  of 
which  shall  have  been  the  direct  cause  of  the  war,  in  conse- 
quence of  the  official  acts  of  either  of  the  governments  before 
the  opening  of  hostilities. 

Article  8.  In  applying  the  rule  set  forth  in  Article  2, 
account  must  be  taken  of  the  contents  of  the  treaty.  If,  in 
the  same  act,  occur  clauses  of  different  kinds,  only  those 
shall  be  considered  annulled  which  come  under  the  categories 
enumerated  in  Article  2.  When,  however,  the  treaty  is  of 
the  character  of  an  indivisible  act,  it  terminates  as  a  whole. 

Article  4.  The  treaties  which  remain  in  force  an !  the 
carrying  out  of  which  is  ,till,  in  spite  of  hostilities,  ^.Tac- 
tically possible,  shall  be  observed  as  in  the  past.    Belligerent 


'  Annuaire,  vol.  23,  p.  251. 
•  /bid.,  vol.  2*,  p.  200. 


•  Ibid.,  vol.  25,  p.  611. 
'  Ibid.,  p.  648. 


Effect  of  War  on  Treaties  173 

States  may  not  disregard  them  except  to  the  degree  and 
for  the  tmie  required  by  the  necessities  of  war 

Article  5    Treaties  which  have  been  concluded  for  the 
contingency  of  war  are  not  covered  by  Articles  2.  8  and  4 

•         Il'^u^.^u    ^'l^^  ^'•^'"  *h^  responsibility  thit  would  be 
mcurred  by  the  Violation  of  these  rules,  they  shouldTerve  to 

Z7vot  ?'  "'T;'/f  *"  ^"PP'^  '"^^  omissions  in^ 
trary  in  a  peace  treaty,  it  shall  be  decided: 
anniil  J,    *  *'''"''  "^''*'^  ^^  '^'  ^'»''  «^^  definitively 
Dended?/nntT'''  "JJ  '^"'*'^  ^^  *^^  ^'''•'  whether  sus- 
eonfent?of* T^'""  *'^^*^''^"^^«  "^  ^^'^^h  conflict  with  the 
abrogat^;  *''"''  '''"*^  "''  "^^^^helers  impUcitly 

no  *e  Jaci^^Ve'i!^^*^^^^  "'  '  *"^*^'  ^^^"^^  °^  *-*'  ^- 


Chapteb  II 

Treaties  P-:tween  Belligebent  States  and  a  Thibd 

State 

in  f^.""?"?  '^'    7^f  P'-o^jsions  of  Articles  1  to  6  shall  apnly, 
m  the  relations  between  belligerent  States,  to  treaties  con- 

rl^t'attnr"  *''"  '"'  '  *'^^'  '*^*^'  ^^^'^  *^^  ^«"-^« 

St„  w 'T  •^'  ^'?^"  *^^  obligations  which  bind  belligerent 
States  m  the.r  relations  with  each  other  have  the  same  object 

in  the  interest  of  the  latter.  Thus  colle.jive  treaties  of 
guaranty  shall  remain  in  force  in  spite  of  war  betw^  n  two 
of  the  contracting  States. 

Article  9.    Collective  amercements  shall  remain  in  force 

They  may  not  be  altered  by  a  treaty  of  peace  to  the 


174    ResdutioM  of  the  Inatitute  of  International  Law 

detriment  of  the  third  contracting  State,  without  the  partici- 
pation or  the  consent  of  the  latter. 

Akticix  10.  Treaties  concluded  between  a  belligerent 
State  and  a  third  State  are  not  affected  by  the  war. 

Abticle  11.  In  default  of  a  formal  clause  to  the  con- 
trary or  of  a  provision  leaving  no  doubt  as  to  the  intention 
of  the  parties,  collective  treaties  relating  to  the  law  of  war 
apply  only  if  the  belligerents  are  all  contracting  parties. 


THE  LAWS  OF  NAVAL  WAR  GOVERNING  THE 
RELATIONS  BETWEEN  BELLIGERENTS 

The  Institute,  having  appointed  on  April  1,  1910,  a  committee  of  nim- 
to  invMUgate  subjects  that  ought  to  be  considered  by  the  »PP'°»^^'"K 
Third  Hague  Conference,  this  committee  met  in  Pans  in  October,  1911, 
and  as  one  result  unanimously  declared  it  desirable  that  the  preparation 
of  regulations  concerning  the  laws  and  customs  of  war  at  sea  with  respect 
to  the  relations  between  belligerents  be  the  first  business  on  the  program 
of  the  next  Hague  Conference.  A  special  committee,  with  Mr.  l-aucliilU' 
as  reporter,  was  at  the  same  time  designated  to  prepare  a  draft  manual 
analogous  to  the  Oxford  Manual  of  land  warfare.  Mr.  Fauchille  s  re- 
ports '  were  considered  by  the  Institute  at  its  Christiania  session  in  191'^ 
(Meetings  of  August  27  and  28).'  On  the  latter  date  the  Institute  in- 
creased the  number  of  members  on  the  committee  to  eleven  and  agro.l 
on  several  guiding  rules  for  the  completion  of  the  manual.  Fu't'"'; 
repoHs  were  made  by  Mr.  Fauchille,'  and  the  Institute  at  its  Oxford 
sersion  in  1913,*  after  five  days'  deliberation,  unanimously,  save  for  one 
member  not  voting,  adopted  the  text  below :  * 

Manual  Adopted  by  the  Institute  of  International 

Law 


Preamble 

The  Institute  of  International  Law,  at  its  Christiania  .ses- 
sion, declared  itself  in  favor  of  firmly  upholding  its  former 
Resolutions  on  the  abolition  of  capture  and  of  confiscation 
of  enemy  private  property  in  naval  warfare.    But  at  tiie 


'  Annuaire.  vol.  -25,  pj>.  41-374. 
'Ihid,  vol,  25,  pp.  593-<i02. 


■  Ibid.,  vol.  26,  pp.  23-403. 
« Ihid.,  p.  504. 


•  Ibid.,  p.  till. 


Il 


The  Oxford  Manual  of  Naval  War  173 

same  time  iK-ing  aware  that  this  principle  is  not  yet  accepted, 
and  deeniinK  that,  for  so  lon^  as  it  shall  not  be,  regulation 
of  the  right  of  capture  is  indispensable,  it  entrusted  a  com- 
mission with  the  task  of  drawing  up  stipulations  providing 
for  either  contingency.  In  pursuance  of  this  latter  action, 
the  Institute,  at  its  Oxford  session,  on  August  9,  1918, 
adopted  the  following  Manual,  based  on  the  right  of 
capture.' 

Section   I.— On   Localities   ^VHEHE   Hostilities  May 

Take  Pl.vce 

Ahticle  1.  Rules  peculiar  to  naval  warfare  are  appli- 
cable only  on  the  high  seas  and  in  the  territorial  waters  of 
the  belligerents,  exclusive  of  those  waters  which,  from  the 
standpoint  of  navigation,  ought  not  to  be  considered  as 
maritime. 


Section   II.— On  the  Armed   Fokce  of  Bellioebent 

States 

Article  2.  War-ships.  Constituting  part  of  the  armed 
force  of  a  belligerent  Stote  and,  therefore,  subject  as  such 
to  the  laws  of  naval  warfare  are: 

•  DiriKmoK.:  Capturt  is  the  act  by  which  the  commander  of  a  war-ship 
subslitutes  his  authority  for  that  of  the  captain  of  the  enemy  ship,  subject  to  the 
subsequent  judgment  of  the  priie  court  as  to  the  ultimate  fate  of  the  ship  and 
Its  cargo. 

tftizHre,  when  applied  to  a  ship,  is  the  act  by  which  a  war-ship  talces  possession 
of  the  vessel  detained,  with  or  without  the  consent  of  the  captain  of  the  latter 
Seizure  differs  from  capture  in  that  the  ultimate  fate  of  the  vessel  may  not  be 
involved  as  a  result  of  its  condemnation. 

Applied  to  goods  alone,  seirure  is  the  act  by  which  the  war-ship,  with  or 
without  the  consent  of  the  captain  of  the  vessel  detained,  takes  possession  of  the 
goods  and  holds  them  or  disposes  of  them  subject  to  the  subsequent  judimient  of 
the  priie  court.  " 

Confiscation  is  the  act  by  which  the  prize  court  renders  valid  the  capture  of 
a  vessel  or  the  seiiure  of  its  goods. 

seiied*)^"'^  ''"*'  "  "  **""""*  •■»?'■"''»"  aPP'ying  to  a  captured  ship  or  to 

^y  public  ihip,  are  meant  all  ships  other  than  war-ships  which,  belonging 
to  the  State  or  to  individuals,  are  set  apart  for  public  service  and  are  under 
-ic  orders  of  an  officer  duly  commissioned  by  the  State. 


!    •■ 


176    Reiolutiofu  of  the  Itutitute  of  International  Law 

1.  All  shipi  belonging  to  the  State  which,  under  the 
direction  of  a  military  commander  and  manned  by  a  military 
crew,  carry  legally  the  ensign  and  the  pendant  of  the  national 
navy. 

2.  Ships  converted  by  the  State  into  war-ships  in  con- 
formity with  Articles  8-6. 

Abticle  8.  Convernon  of  public  and  private  veaaeU  into 
vcar-ahip*.  A  vessel  converted  into  a  war-ship  cannot  have 
the  rights  and  duties  accruing  to  such  vesf  unless  it  is 
placed  under  the  direct  authority,  immediate  control,  and 
responsibility  of  the  Power  whose  flog  it  flics. 

Ahticle  4.  Vessels  converted  into  war-ships  must  hcnr 
the  exterior  marks  which  distinguish  the  war-ships  of  their 
nationality. 

Article  a.  The  commander  must  be  in  the  service  of 
the  State  and  duly  commissioned  by  the  competent  authori- 
ties; his  name  must  appear  on  the  list  of  officers  of  the  fight- 
ing fleet. 

Article  6.  The  cr  '  must  be  subject  to  the  rules  of 
military  discipline. 

Article  7.  Every  vessel  converted  into  a  war-sliip 
must  observe  in  its  operations  the  laws  and  customs  of  war. 

Article  8.  The  belligerent  who  cu/ivc.  t  a  vessel  into 
a  war-ship  must,  as  soon  as  possible,  announce  such  conver- 
sion in  the  list  of  war-ships. 

Article  9.  The  conversion  of  a  vessel  into  a  war-ship 
may  be  accomplished  by  a  belligerent  only  in  its  own  waters, 
in  those  of  an  allied  State  also  a  belligerent,  in  those  of  tlic 
adversary,  or,  lastly,  in  those  of  a  territory  occupied  by  the 
troops  of  one  of  these  States. 

Article  10.  Convernon  of  war-ships  into  public  or  pri- 
vate vessels.  A  war-ship  may  not,  while  hostilities  last,  l)e 
converted  into  a  public  or  a  private  vessel. 

Article  11.  Belligerent  personnel.  Constituting  part 
of  the  armed  force  of  a  l)elligerent  State  and,  therefore,  in  so 
far  as  they  carry  on  operations  at  sea,  subject  as  such  to  the 
laws  of  naval  warfare,  are: 

1.    The  personnel  of  the  ships  mentioned  in  Article  2; 


The  Oxford  Manual  of  Navtd  War  177 

!*   ^'  ^'^P"  r'  ^  "*''»'  forces,  active  or  reserve; 
£u    nulitarized  personnel  on  tlje  seacoasts; 

4.  The  regular  forces,  other  than  naval  forces,  or  those 
regularly  organized  in  conformity  with  Article  1  of  the 
Hague  Regulations  of  October  18, 1007,  concerning  the  laws 
and  customs  of  war  on  land. 

Article  U.  Privateering,  private  ve$»eU.  public  veueU 
not  toar-thtpt.    Privateering  is  forbidden. 

Apart  from  the  conditions  laid  dowii  in  Articles  8  and 
following,  neither  public  nor  private  vessels,  nor  their  per- 
sonnel,  may  commit  acts  of  hostility  against  the  enemy 

Both  may.  however,  use  force  to  defend  themselves 
against  the  attack  of  an  enemy  vessel. 

ABTICI.E  18.  Population  of  unoccupied  territory  The 
inhabitants  of  a  territory  which  has  not  l)een  occupied  who. 
upon  the  approach  of  the  enemy,  spontaneously  arm  vessels 
to  fight  him,  without  having  had  time  to  convert  them  into 
war-ships  m  conformity  with  Articles  8  and  following,  shall 
be  considered  as  belligerents,  if  they  act  openly  and  if  they 
respect  the  laws  and  usages  of  war. 

Section  III.— On  Means  of  Injuring  the  Enemy 

Article  14.  Principle.  Ihe  right  of  belligerents  to 
adopt  means  of  injuring  the  enemy  is  not  unlimited. 

Article  15.  Treacherous  and  barbarous  vitthods.  Ruses 
of  wai  are  considered  permissible.  Methods,  however,  which 
involve  treachery  are  forbidden. 

Thus  it  is  forbidden: 

1.  To  kill  or  wound  treacherously  individuals  belonging 
to  the  opposite  side; 

2.  To  make  improper  use  of  a  flag  of  truce,  to  make  use 
of  false  flags,  uniforms,  or  insignia,  of  whatever  kind,  espe- 
cially those  of  the  enemy,  as  well  as  of  the  distinctive  badges 
of  the  medical  corps  indicated  in  Articles  41  and  42. 

Article  16.    In  addition  to  the  prohibitions  which  shall 
be  established  by  special  conventions,  it  is  forbidden: 
1.    To  employ  poison  or  poisoned  weapons,  or  projectiles 


178    Resolutions  of  the  Institute  of  International  Law 

the  sole  object  of  which  is  the  diffusion  of  asphyxiating  or 
deleterious  gases;  ,    w  , 

2.  To  employ  arms,  projectiles,  or  materials  calculated 
to  cause  unnecessary  suffering.  Entering  especially  into  this 
category  are  explosive  projectiles  or  those  charged  with  ful- 
minating or  inflammable  materials,  less  than  400  grams  in 
weight,  and  bullets  which  expand  or  flatten  easily  in  the 
human  body,  such  as  bullets  with  a  hard  envelope  which 
does  not  cover  the  core  entirely  or  is  pierced  with  incisions 

Article  17.    It  is  also  forbidden: 

1.  To  kill  or  to  wound  an  enemy  who,  having  laid  down 
his  arms  or  having  no  longer  means  of  defense,  has  sur- 
rendered at  discretion; 

2.  To  sink  a  ship  which  has  surrendered,  before  having 

taken  off  the  crew; 

8.    To  declare  that  no  quarter  will  be  given. 
Aeticle  18.    Pillage  and  devastation  are  forbidden. 
It  is  forbidden  to  destroy  enemy  property,  except  in  ti\e 
cases  where  such  destruction  is  imperatively  required  by  tlie 
necessities  of  war  or  authorized  by  provisions  of  the  present 

regulations. 

Articix  19.  Torpedoes.  It  is  forbidden  to  employ  tor- 
pedoes which  do  not  become  harmless  when  they  have  missed 

their  mark.  -    ,,, 

Article  20.  Submarine  mines.  It  is  forbidden  to  lay 
automatic  contact  mines,   anchored   or  not,  in  the  open 

sea. 

Article  21.  Belligerents  may  lay  mines  in  their  terri- 
torial waters  and  in  those  of  the  enemy. 

But  it  is  forbidden,  even  in  territorial  waters: 

1.  To  lay  unanchored  automatic  contact  mines  unless 
they  are  so  constructed  as  to  become  harmless  one  hour  at 
most  after  the  person  who  laid  them  ceases  to  control  them; 

2.  To  lay  anchored  automatic  contact  mines  which  do 
not  become  harmless  as  soon  as  they  have  broken  loose  from 
their  moorings. 

Article  22.  A  belligerent  may  not  lay  mines  alon«i  the 
coast  and  harbors  of  his  adversary  excev*  for  naval  and  null- 


k 


The  Oxford  Manual  of  Naval  War  179 

tary  ends.    He  is  forbidden  to  lay  them  there  in  order  to 
estabhsh  or  to  maintain  a  commercial  blockade 

Article  23.    When  automatic  contact  mines,  anchored 

taken  for  the  sc  .i.-uy  c.\  j>eacpful  shipping 

The  belligenuts  luv.st  do  Weir  utmost  to  render  these 
mines  harmless  >  .t).  n  a  lin.itc  '  time 

Should  the  mir^s  .ea^.  to  be  under  surveillance,  the  bel- 
hgerents  shall  notify  the  danger  zones  as  soon  as  n.ilitarv 
exigencies  permit,  by  a  notice  addressed  to  ship-owners 

;i^nib'"t';      r  r    ^\-  T"^""''''*"^    *"   '^^^   government; 
through  the  diplomatic  channel 

Article  24.  At  the  close  of  the  war,  the  belligerent 
States  shall  do  their  utmost  to  remove  the  mines  thaf  tl^y 
have  laid,  each  one  its  own.  ' 

As  regards  the  anchored  automatic  contact  mines  laid  by 
one  of  the  belligerents  off  the  coast  of  the  other  their  nosf 
tion  must  be  notified  to  the  other  party  by  the'  State  thlt" 
has  laid  them,  and  each  State  nius/ prcU,  wltlf  It  S 
possible  delay,  to  remove  the  mines  in  its  own  waters 

belligerent  States  upon  whom  rests  the  obligation  of  re- 
moving these  mines  after  the  war  is  over  shall,  with  as  little 
delay  as  possible,  make  known  the  fact  that,  so  far  as  is 
possible,  the  mines  have  been  removed. 

Article  25.    Bomhardmcnt.    The  bombardment  of  un- 
t Sen  ^'''*''  *""""''  '''"''^'''  ^^^''^"'"^''^'  "'•  buildings  is 
A  place  cannot  be  bombarded  solely  because  submarine 
automatic  contact  mines  are  anchored  off  its  coast 

Article  26.  Military  works,  military  or  naval  establish- 
ment^, depots  of  arms  or  war  materiel,  workshops  or  plants 
Mhich  could  be  utilized  for  the  needs  of  the  hostile  fleet  or 
army,  and  the  war-ships  in  the  harbor,  are  not.  however,  in- 
cluded in  this  prohibition.  The  commander  of  a  naval  force 
may  destroy  them  with  artillerv',  after  a  summons  followed 
t'y  a  reasonable  time  of  waiting,  if  all  other  means  are  im- 
possible, and  when  the  local  authorities  have  not  themselves 
destroyed  them  within  the  time  fixed 


mI 

,-.« 


1^' 


180    Resolutions  of  the  Institute  of  International  Law 

He  incurs  no  responsibility  for  any  unavoidable  damage 
which  may  be  caused  by  a  bombardment  under  such  circum- 
stances. 

If  for  military  reasons  immediate  action  is  necessary, 
and  no  delay  can  be  allowed  the  enemy,  it  is  understood  'I'lit 
the  prohibition  to  bombard  the  undefended  town  holds  good, 
as  in  the  case  given  in  paragraph  1,  and  that  the  commander 
shall  take  all  due  measures  in  order  that  the  town  may  suffer 
as  little  harm  as  possible. 

Ahticle  27.  The  bombardment  of  undefended  ports, 
towns,  villages,  dwellings,  or  buildings  because  of  the  non- 
payment of  contributions  of  money,  or  the  refusal  to  comply 
with  requisitions  for  provisions  or  supplies  is  forbidden. 

Article  28.  In  bombardments  all  useless  destruction  is 
forbidden,  and  especially  should  all  necessary  measures  be 
taken  by  the  commander  of  the  attacking  force  to  spare,  as 
far  as  possible,  sacred  edifices,  buildings  used  for  artistic, 
scientific,  or  charitable  purposes,  historic  monuments,  hos- 
pitals, and  places  where  the  sick  or  wounded  are  collected, 
on  condition  that  they  are  not  used  at  the  same  time  for 
military  purposes. 

It  is  the  duty  f  the  inhabitants  to  indicate  such  monu- 
ments, edifices,  or  places  by  visible  signs,  which  shall  con- 
sist of  large  stiff  rectangular  panels  divided  diagonally  into 
two  colored  triangular  portions,  the  upper  portion  black, 
the  lower  portion  white. 

Article  29.  If  the  military  situation  permits,  the  com- 
mander of  the  attacking  naval  force,  before  commencing  the 
bombardment,  must  do  his  utmost  to  warn  the  authorities. 

Article  80.  Blockade.  Ports  and  coasts  belonging  to 
the  enemy  or  occupied  by  him  may  be  subjected  to  blockade 
according  to  the  rules  of  international  law. 

Section  IV.— On  the  Rights  and  Duties  of  the  Bellig- 
erent WITH   REGAHn  TO  EnEMY  PROPERTY 

Article  31.  A.  Ships  and  cargoes— War-ships.  The 
armed  forces  of  a  State  may  attack  the  enemy's  war-ships,  to 


The  Oxford  Manual  of  Naval  War  181 

take  p.  .session  of  them  or  to  destroy  them,  together  with 
the.r  ec,u.pment  and  supplies,  whether  these  Zsat  the 
begmmng  of  the  struggle,  are  in  a  harbor  of  the  Stat;  or  are 
encountered  at  sea.  in  ignorance  of  hostilities;  or  bt /ore' 
majeure  are  e.ther  compelled  to  enter  a  port,  or  are  cast  on 
the  shores  of  said  State.  " 

AKTICLE82  Public  and  private  vessels-Stopping  visit 
and  seareh.  All  vessels  other  than  those  of  the  navrwherer 
tl  ^  r^  *"  ^  ^*'J'  ""'  *"  •■"'I'viduals,  may  be  summon^ 
t^^^H  T7*  war-ship  to  stop  that  a  visit  and  searcH^ 
be  conducted  on  board  them.  ^ 

The  belligerent  war-ship,  in  ordering  a  vessel  to  ston 
shall  fire  a  charge  of  powder  as  a  summon? and.  ?  hat  war"' 
mg  ,s  not  sufficent,  shall  fire  a  projectile  across  the  b^wof 
the  vessel     Previously  or  at  the  same  time,  the  war-shir  sTial 

tTL  ^^""^''^^  ^"^^^••s  the  signal  by  hoisting  its  own 

senVto  thi^^r^^T^  '*  TV  -'^"-"Pon.  the  war-ship  sZ 
send  to  the  stopped  vessel  a  launch  manned  by  an  officer  and 
a  sufficent  number  of  men.  of  whom  only  two  or  three  .'M 
accompany  the  officer  on  board  the  stopped  vessel         '   " 

ship^s'^IpTrr  *^  "  *'^  '"*  P'"^^  •"  ^"  ^^«--*-  "f  the 

If  the  ship's  papers  are  insufficient  or  not  of  a  natui    to 

allay  suspicion,  the  officer  conducting  the  visit  has  the    ight 

ISTiTIh*"  ^■''^''^.  ""'  '^'  '''''^'  <"-  ^hich  purpose  he 
must  ask  the  cooperation  of  the  captain 

J    S'*  -fu^^n*  ^*''^^*'  '""'t,  as  Article  .53  savs.  be  con- 

posl^le.  '""^  -nsideration  and  all  the  expedition 

to  vlfr''  T"""^'"!  ^y  *  '''"*'"'^'  ^«^-«h'P  are  not  subject 
convoys      '^   '"  '°        ""'  permitted  by  the  rules  relating  to 

vp«^''''i"'  ^^'  '^"""P^^  0/  ^^^Pt^re.  Public  and  private 
vessels  of  enemy  nationality    are  subject  to  capture    and 

"Tht^^;  Z  'T''^''^  ^^  ^'"^'^*''  «-  Iiabletsei^urt 
wh.nT  :      '"F*"'^  """"^  '*^'^"'^  «re  permitted  even 

when  the  vessels  or  the  goods  have  fallen  into  the  power  of 


I 


i 

ft- 


182    Resolutions  of  the  Institute  of  IntcrviUntial  Imw 

the  belligerent  because  of  force  majeure,  t)  ugh  shipwreck 
or  by  being  compellod  to  put  into  port. 

Article  35.  Vessels  which  possess  no  ship's  papers, 
which  have  intentionally  destroyed  or  hidden  those  that  they 
had,  or  which  offer  false  ones,  are  liable  to  seizure. 

Article  36.  Extenuation  of  the  principle  of  capture. 
When  a  public  or  private  vessel  belonging  to  one  of  the 
belligerent  Powers  is,  at  the  commencement  of  hostilities,  in 
an  enemy  port,  it  is  allowed  to  depart  freely,  immediately 
or  after  a  reasonable  number  of  days  of  grace,  and  to  pro- 
ceed, after  having  been  furnished  with  a  passport,  to  its  port 
of  destination,  or  to  any  other  port  indicated. 

The  same  rule  should  apply  in  the  case  of  a  ship  which 
has  left  its  last  port  of  departure  before  the  commencement 
of  the  war  and  entered  an  enemy  port  while  still  ignorant  of 
hostilities. 

Article  37.  The  public  or  private  vessel  unable,  owing 
to  circumstances  of  force  majeure,  to  leave  the  enemy  port 
within  the  period  contemplated  in  the  preceding  article,  can- 
not be  captured. 

The  belligerent  may  only  detain  it  without  payment  of 
compensation  but  subject  to  the  obligation  of  restoring  it 
after  the  war,  or  requisition  it  on  payment  of  compensation. 

Article  38.  Enemy  vessels,  public  or  private,  which  lei't 
their  last  port  of  departure  before  the  commencement  of  the 
war  and  which  are  encountered  on  the  high  seas  while  still 
ignorant  of  the  outbreak  of  hostilities,  cannot  be  captured. 
They  are  only  liable  to  detention  on  the  understanding  that 
they  shall  be  restored  after  the  war  without  compensation, 
or  requisitioned,  or  even  destroyed,  on  payment  of  compensa- 
tion, but  in  such  case  provision  must  be  made  for  the  safety 
of  the  passengers  on  board  as  well  as  for  the  security  of  tlie 
ship's  papers, 

But,  where  these  vessels  shall  be  encountered  at  sea  l)c- 
fore  the  expiration  of  a  sufficient  period  to  be  granted  by 
the  belligerent,  seizure  is  not  permissible.  Vessels  thus  en- 
countered are  free  to  proceed  to  their  port  of  destination  or 
to  any  other  port  indicated. 


The  Oxford  Manual  of  Naval  War  188 

After  touching  at  a  port  in  their  own  country  or  at  a 
neutral  port,  these  vessels  are  subject  to  capture. 

AHTicLE  39  Enemy  cargo  found  on  board  the  ships  de- 
tained under  Articles  87  and  88  may  likewise  be  hdd  It 
must  be  restored  after  the  termination  of  the  war  wUhou 

?:C;ltior ""'*^'  '^'''  -^^'^--'  -  P^^-nt^J 
The  same  rule  is  applicable  to  goods  which  are  contra- 
st 87  anS%r"'^  '"  ^r^  ^  "'^^^'^  "^^"*'""^J  •"  Articles 
36  87  and  38.  even  when  these  vessels  are  not  subject  to 
capture.  ""j-^-i.  lu 

nn,l^«"''''Ki'*^*  ^"•''"  ''''^^^  considered  in  Articles  36,  37 
and  38.  public  or  private  ships  whose  build  shows  that  they 
are  intended  for  conversion  into  war-ships,  may  be  seized  or 
requisitioned  upon  payment  of  compensation.  These  vessels 
shall  be  restored  after  the  war. 

Goods  found  on  board  these  ships  shall  be  dealt  with 
according  to  the  rules  in  Article  39. 

Article  41.  Exceptions  to  the  principles  in  Articles  31 
and  32--Hospttal  ships.  xAIilitary  hospital  ships,  that  is  to 
say,  ships  constructed  or  assigned  by  States  specially  and 
solely  with  a  view  to  assisting  the  wounded,  sick  and  ship- 
wrecked, the  names  of  which  have  been  communicated  to 
the  belligerent  Powers  at  the  commencement  or  during  the 
course  of  hostilities,  and  in  any  case  before  they  are  em- 
pJoj^d,  shall  be  respected,  and  cannot  be  captured  while 
hostilities  last. 

Military  hospital  ships  shall  be  distinguished  bv  being 
painted  white  outside  with  a  horizontal  band  of  green  about 
a  meter  and  a  half  (five  feet)  in  breadth. 

The  boats  of  the  ships  above  mentioned,  as  also  small 
craft  which  may  be  used  for  hospital  work,  shall  be  dis- 
tinguished by  similar  painting. 

All  hospital  ships  shall  make  themselves  known  by  hoist- 
ing, with  their  national  flag,  the  white  flag  with  the  red  cross 
provided  by  the  Geneva  Convention. 

The  ships  and  boats  above  mentioned  which  wish  to  en- 
sure by  night  the  freedom  from  interference  to  which  they 


184    Resolutions  of  the  Institute  of  International  Law 


ifiJi. 


are  entitled,  must,  subject  to  the  belligerent  they  are  accom- 
panying, take  the  measures  necessary  to  render  their  special 
painting  sufficiently  plain. 

The  distinguishing  signs  referred  to  in  this  article  can 
be  used  only  for  protecting  or  indicating  the  ships  herein 
mentioned. 

These  ships  cannot  be  used  for  any  military  purpose. 

They  must  in  no  wise  hamper  the  movements  of  the  com- 
batants. 

During  and  after  an  engagement,  they  will  act  at  their 
own  risk  and  peril. 

The  belligerents  shall  have  the  right  to  control  and  search 
them:  they  can  refuse  to  help  them,  order  them  off,  make 
them  take  a  certain  course,  and  put  a  commissioner  on  board; 
they  can  even  detain  them,  if  important  circumstances  re- 
quire it. 

As  far  as  possible,  the  belligerents  shall  enter  in  the  log 
of  the  hospital  ships  the  orders  which  they  give  them. 

Hospital  ships  which,  under  the  terms  of  this  article, 
are  detained  by  the  enemy,  must  haul  down  the  national 
flag  of  the  belligerent  to  whom  they  belong. 

Article  42.  Hospital  ships,  equipped  wholly  or  in  part 
at  the  expense  of  private  individuals  or  officially  recognized 
relief  societies,  shall  likewise  be  respected  and  exempt  from 
capture,  if  the  belligerent  Power  to  whom  they  belong  has 
given  them  an  official  commission  and  has  notified  their 
names  to  the  hostile  Power  at  the  commencement  of  or  dur- 
ing hostilities,  and  in  any  case  before  they  are  employed. 

These  ships  must  be  provided  with  a  certificate  from 
competent  authorities  declaring  that  the  vessels  have  been 
under  their  control  while  fitting  out  and  on  final  departure. 

The  ships  in  question  shall  be  distinguished  by  being 
painted  white  outside  with  a  horizontal  band  of  red  about  a 
meter  and  a  h^lf  (five  feet)  in  breadth. 

They  are  subject  to  the  regulatioi  s  laid  down  for  mili- 
tary hospital  ships  by  Article  41. 

Article  43.  In  case  of  a  fight  on  board  a  war-ship,  the 
sick-wards  and  the  materiel  belonging  to  them  shall  be  re- 


The  Oxford  Manual  of  Naval  War  185 

spected  and  spared  as  far  as  pos.sil,lc.  Although  remaining 
subjert  to  the  laws  of  war.  they  cannot  be  used  for  any  pui? 
pose  other  than  that  for  which  they  were  originally  intended 
so  long  as  they  are  required  for  the  sick  and  wounded.  The 
commander  into  whose  power  they  have  fallen  may,  however 
apply  them  to  other  purposes,  if  the  military  situation  re-' 
quires  It.  afte.  seeing  that  the  sick  and  wounded  onZlxd 
are  properly  provided  for. 

Abticle  44.  Hospital  ships  and  sick-wards  of  vessels  are 
no  longer  ent  tied  to  protection  if  they  are  employ^  ?«' 
the  purpose  of  injurmg  the  enemy.  The  fact  that  the  staff 
order'^nH  f  T<^  "I!^  ^^^^^-^^rds  is  armed  for  maintaining 
order  and  for  defending  the  sick  and  wounded,  and  the  pres- 
ence of  wireless  telegraphy  apparatus  on  board,  are  not  Suffi- 
cient reasons  for  withdrawing  protection 

Abticle  45.    Cartel  ships.     Ships  called  cartel  ships. 

while  fulfilling  their  mission,  even  if  they  belong  to  the  navy 
«  nfrl'pv  ^  authonzed  by  one  of  the  belligerents  to  enter  into 
a  parley  wiU.  the  other  and  carrying  a  white  flag  is  con- 
sidered  a  cartel  ship. 

The  commanding  officer  to  whom  a  cartel  ship  is  sent  is 
not  obliged  to  receive  it  under  all  circumstances.  He  can 
take  all  measures  necessary  to  prevent  the  cartel  ship  from 
prohting  by  its  mission  to  obtain  information.  In  case  it 
abuses  Its  privileges,  he  has  the  right  to  hold  the  cartel  ship 
temporarily.  ^ 

A  cartel  ship  loses  its  rights  of  inviolability  if  it  is  proved 
positively  and  unexceptionably,  that  the  commander  has 
profited  by  the  privileged  position  of  his  vessel  to  provoke  or 
to  commit  a  treacherous  act. 

Article  46.  Vessels  charged  mth  missions.  Vessels 
charged  with  religious,  scientific,  or  philanthropic  missions 
are  exempt  from  seizure. 

Article  47.  Vessels  used  exclusively  for  fishing  along 
the  coast  and  for  local  trade.  Vessels  used  exclusively  for 
fishing  along  the  coast,  or  for  local  trade,  under  whi-h  term 
are  included  those  used  exclusively  for  piloting  or  for  light- 


186    Rc»olution»  of  the  Inttitute  of  International  Law 

house  service,  as  well  as  the  boats  meant  principally  for  the 
navigation  of  rivers,  canals,  and  lakes,  are  exempt  from 
seizure,  together  with  their  appliances,  rigging,  tackle  and 
cargo. 

It  is  forbidden  to  take  advantage  of  the  harmless  char- 
acter of  said  boats  in  order  to  use  them  for  military  purposes 
while  preserving  their  peaceful  appearance. 

Abticu^-  48.  Vessels  furnished  with  a  safe-conduct  or  a 
license.  Enemy  vessels  provided  with  a  safe-conduct  or  a 
license  are  exempt  from  seizure. 

Article  49.  Suspension  of  immunities.  The  exceptions 
considered  in  Articles  41,  42,  45,  46,  47  and  48  cease  to  be 
applicable  if  the  vessels  to  which  they  refer  participate  in  the 
hostilities  in  any  manner  whatsoever  or  commit  other  acts 
which  are  forbidden  to  neutrals  as  unneutral  service. 

The  same  suspension  occurs  if,  summoned  to  stop  to  sub- 
mit to  search,  they  seek  to  escape  by  force  or  by  flight. 

Article  50.  Rights  of  the  belligerent  in  the  zone  of 
operations.  When  a  belligerent  has  not  the  right  of  seizing 
or  of  capturing  enemy  vessels,  he  may,  even  on  the  high  seas. 
forbid  them  to  enter  the  zone  corresponding  to  the  actual 
sphere  of  his  operations. 

He  may  also  forbid  them  within  this  zone  to  perform  cer- 
tain acts  calculated  to  interfere  with  his  activities,  especially 
certain  acts  of  communication,  such,  for  example,  as  the  use 
of  wireless  telegraphy. 

The  simple  infraction  of  these  prohibitions  will  entail 
driving  the  vessel  back,  even  by  force,  from  the  forbidden 
zone  and  the  sequestration  of  the  apparatus.  The  vessel,  if 
it  be  proved  that  it  has  communicated  with  the  enemy  to 
furnish  him  with  information  concerning  the  conduct  of  hos- 
tilities, can  be  considered  as  having  placed  itself  at  the  serv- 
ice of  the  enemy  and,  consequently,  with  its  apparatus,  shall 
be  liable  to  capture. 

Article  51.  Enemy  character.  The  enemy  or  neutral 
character  of  a  vessel  is  determined  by  the  flag  which  it  is 
entitled  to  fly. 

The  enemy  or  neutral  character  of  goods  found  on  boarJ 


The  Oxford  Manual  of  Naval  War  \%^ 

Each  State  must  declare,  not  later  than  the  outbreak  of 
host.ht.es   whether  the  enemy  or  neutral  character  of  the 

hTn:t.l2rt?:^'  -  ^^^^^'-'"^^  '^  '^^  p'-  «^  -^^-Lt 

Enemy  goods  found  on  board  an  enemy  shin  retain  their 
enemy  character  until  they  reach  their  destination  notwHh- 
stend.ng  any  transfer  effected  after  the  outbreak  ohos- 
til.t.es  while  the  goods  are  being  forwarded 

= IS."""' '" — *"^  ^-*^y  -^^^ 

Article  52.  Transfer  to  a  neutral  flag.  The  transfer 
of  an  eneiny  vessel  to  a  neutral  flag,  effected  before  the  out- 
break of  host.l.t.es.  is  valid,  unless  it  is  proved  that  such 
transfer  was  made  ,n  order  to  evade  the  consequences  to 
which  an  enemy  vessel  as  such  is  exposed.  There  is,  however 
a  presumpt.on.  .f  the  bill  of  sale  is  not  on  board  a  vessel 
which  has  lost  Its  belligerent  nationality  less  than  sixty  days 
before  the  outbreak  of  hostilities,  that  the  transfer  is  void; 
this  presumption  may  be  rebutted. 

Where  the  traiisfer  was  effected  more  than  thirty  days 
before  the  outbreak  of  hostilities,  there  is  an  absolute  pre- 
sumption  that  .t  is  valid  if  it  is  unconditional,  complete,  and 
in  conform.ty  w.th  the  laws  of  the  countries  concerned,  and 
if  its  effect  .s  such  that  neither  the  control  of.  nor  the  profits 
arising  from  the  employment  of,  the  vessel  remain  in  the 
same  hands  as  before  the  transfer.  If,  however,  the  vessel 
ost  her  belligerent  nationality  less  than  sixty  days  before 
the  outbreak  of  hostilities  and  if  the  bill  of  sale  is  not  on 
board  the  capture  of  the  vessel  gives  no  right  to  damages. 

ihe  transfer  of  an  enemy  vessel  to  a  neutral  flag  effected 
after  the  outbreak  of  hostilities,  is  void  unless  it  is  proved 
that  such  transfer  was  not  made  in  order  to  evade  the  con- 
sequences to  which  an  enemy  vessel,  as  such,  is  exposed. 

I  here  is,  however,  an  absolute  presumption  that  a  trans- 


:.l 


188    Rcaolutiom  of  the  Itutitute  of  Intematiotial  Law 


fer  is  void:  1.  if  the  transfer  has  been  made  during  a  voyage 
or  in  a  blockaded  port;  2.  if  a  right  to  repurchase  or  recover 
the  vessel  is  reserved  to  the  vendor;  8.  if  the  requirements 
of  the  municipal  law  governing  the  right  to  fly  the  flag  under 
which  the  vessel  is  sailing,  have  not  been  fulfllled. 

Article  58.  B.  Poatal  correipondence.  Postal  corre- 
spondence, whatever  its  oflir'al  or  private  character  may  be, 
found  on  the  high  seas  on  board  an  enemy  ship,  is  inviolable, 
unless  it  is  destined  for  or  proceeding  from  a  blockaded 
port. 

The  inviolability  of  postal  correspondence  does  not  ex- 
empt mail-boats  from  the  laws  and  customs  of  maritime  war 
as  to  ships  in  general.  The  ship,  however,  may  not  be 
searched  except  when  absolutely  necessary,  and  then  only 
with  as  much  consideration  and  expedition  as  possible. 

If  the  ship  on  which  the  mail  is  sent  be  seized,  the  corre- 
spondence is  forwarded  by  the  captor  with  the  least  possible 
delay. 

i\ujicLE  54.  C.  Submarine  cables.  In  the  conditions 
statc;i  below,  belligerent  States  are  authorized  to  destroy  or 
to  seize  only  the  submarine  cables  connecting  their  territories 
or  two  points  in  these  territories,  and  the  cables  connecting 
the  territory  of  one  of  the  nations  engaged  in  the  war  with 
a  neutial  territory. 

The  cable  connecting  the  territories  of  the  two  bellig- 
erents or  two  points  in  the  territorj'  of  one  of  the  belligerents, 
may  be  seized  or  destroyed  throughout  its  length,  except  in 
the  waters  of  a  neutral  State. 

A  cable  connecting  a  neutral  territory  with  the  territory 
of  one  of  the  belligerents  may  not,  under  any  circumstances, 
be  seized  or  destroyed  in  the  waters  under  the  power  of  a 
neutral  territory.  On  the  high  seas,  this  cable  may  not  be 
seized  or  destroyed  unless  there  exists  an  effective  blockade 
and  within  the  limits  of  that  blockade,  on  consideration  of 
the  restoration  of  the  cable  in  the  shortest  time  possible. 
This  cable  may  be  seized  or  destroyed  on  the  territory  of  and 
in  the  waters  belonging  to  the  territory  of  the  enemy  for  a 
distance  of  three  marine  miles  from  low  tide.     Seizure  or 


The  Oxford  Manual  of  Naval  War  139 

m„i."»S^'^'"*  M*  P''"^'"^  '•"les  no  distinction  is  to  be 
r  L^.  r  ^''?^«;/T'''^i"K  to  whether  the>  belong  to 
the  Stete  or  to  mdividuals;  nor  is  any  regard  to  be  ni^5  Z 
the  nationality  of  their  owners.  ^  P"*^  *° 

*^ubmarine  cables  connecting  bellifferent  terrifnrv  on»i, 
ncHural  territory,  which  have  be?n  seizST  destroy^  sTall 
be  restored  and  compensation  fixed  when  peace  is  made 

Section  V^-On  the  Rights  and  Duties  ok  the  Bellio- 

EHENT  WITH   ReQAHD  TO   INDIVIDUALS 

Abticij:    53.   A.    Personnel    of    vea»ph     ur„^   i- 
When  a  war-ship  is  captured  by  thetem;  t;;>^r^'r^ 
non-,.>mbatants  forming  part  of  the  arnml  for^s  of  the 
belhgerents.  are  to  be  treated  as  prisoners  of  war 

ABTicLE  36.  Public  or  private  vessels.  When  an  enemv 
sh,p.  public  or  private,  is  seized  by  a  belligerent,  such  "fTts 
crew  as  are  nationals  of  a  neutral  State,  are  not  made  pr' 

taTand  oT    ^vC  ''""'  "^'^  ^^^P""  '"  ^^e  case  of  the  Cap- 
tain and  officers  likewise  nationals  of  a  neutral  State,  if  they 
promise  m  writing  not  to  take,  during  hostilities,  any  seirice 
comiected  with  the  operations  of  the  war.     The  capte  n 
officers  and  members  of  the  crew,  when  nationals  of  the 

tltThev  malcr  T  "f '^  P"^""^"  «^  "-'  «"  -"^'t^o- 
hat  they  make  a  formal  promise  in  writing  not  to  under- 
take, while  hostilities  last,  any  service  connected  with  the 
operations  of  the  war. 

Article  57  The  names  of  the  persons  retaining  their 
liberty  on  condition  of  the  promise  provided  for  bv  the  pre- 
ceding article,  are  notified  by  the  belligerent  capior  to  the 

en  1J1h*''T*-     '^^^  '«""  '^  ^"'•^^J^"  knowingly  to 
employ  the  said  persons.  e  J'   «^" 

Aeticle  58.   All  persons  constituting  part  of  the  crew 

P  o^f  to   h'/'  ^^"''*"  ""'"''\  ''"P  ''''  •"  '^'  absence  of 
proof  to  the  contrary,  presumed  to  be  of  enemy  nationality. 

article  59.    Members  of  the  personnel  of  an  enemy  ship 


k 


100    Retoiutiotu  of  the  Institute  of  International  Law 

which.  Vcause  of  its  special  character,  is  itself  exempt  from 
seizure,  cannot  be  held  as  enemies. 

Articlk  60.  When  a  public  or  a  private  ship  has  directly 
or  indirectly  taken  part  in  the  hostilities,  the  enemy  may  re- 
tain as  prisoners  of  war  the  whole  personnel  of  the  ship, 
without  prejudice  to  the  penalties  he  might  otherwise  incur. 

Ahticix  01.  Members  of  the  personnel  of  a  public  or  of 
a  private  vessel,  who  are  personally  guilty  of  an  act  of  hos- 
tility towards  the  enemy,  nmy  be  held  by  him  as  prisoners 
of  war,  without  prejudice  to  the  penalties  he  might  otherwise 
incur. 

Article  62.  B.  Paasengert.  When  individuals  who 
follow  a  naval  force  without  belonging  to  it,  such  os  coii- 
trnctors,  newspaper  correspondents,  etc.,  fall  into  the  enemy's 
hands,  and  when  the  latter  thinks  it  expedient  to  detain 
them,  they  nmy  be  detained  only  so  long  as  military  exi- 
gencies require.  They  are  entitled  to  be  treated  as  pris- 
oners of  war. 

Article  63.  Passengers  who,  without  forming  part  ol" 
the  crew,  are  on  board  an  enemy  ship,  may  not  be  detained  as 
prisoners  of  war,  unless  they  have  been  guilty  of  a  hostile 
act. 

All  passengers  included  in  the  armed  force  of  the  enemy 
may  be  made  prisoners  of  war,  even  if  the  vessel  is  not  sub- 
ject to  seizure. 

Article  64.  C.  Religious,  medical,  and  hospital  per- 
sonnel. The  religious,  medical,  and  hospital  staff  of  every 
vessel  taken  or  seized  is  inviolable,  and  its  meml)ers  may  not 
be  made  prisoners  of  war.  On  leaving  the  ship  they  t!ik( 
away  with  them  the  objects  and  surgical  instruments  wliu  n 
are  their  own  private  property. 

This  staff  shall  continue  to  discharge  its  duties  while  nec- 
essarj',  and  can  afterwards  leave,  when  the  commander  in 
chief  considers  it  possible. 

The  belligerents  nmst  guarantee  to  the  said  staff,  w! :  ss 
it  has  fallen  into  their  hands,  the  same  allowances  and  pa' 
which  are  given  to  the  staff  of  corresponding  rank  in  their 
own  navv. 


The  Oxford  Manual  of  Naval  H'ar  loi 

The  commissioner  put  hv  thi-  twi I ;.»..«»»        i        .    . 
hospital  ship  of  his  ttdvcrsarv^  in  L  . f  ^T  *  T  '"'""'  ^^"^ 

ioSrA.ii..enj!;^r:::S-r::';^3a 

they  use  their  arms  otherwinitr'lS; i/""""'^'^"' 

Ahticle  65.     D.     Parlcmcntaircs.     The  personnel  of 

cartel  ships  is  inviolahle.  personnel  of 

It  loses  its  rights  of  inviolability  if  it  is  nrovr,!  in  „  ni 
and  .neontestable  manner  that  it  lis  t  k   .S,^    "  "^  ^^^ 
pnv.leffed  position  to  provoke  or  eo„„nit  an  act  ofTreason 

ceahnp  h.s  operations,  he  obtains  or  encleavo  rto  o  t"  in     ' 
ormafon  m  the  ^one  of  operations  of  a  belligerent   wh 
the  mtentmn  of  eommunicatinff  it  to  the  hostile  part" 

fr„f  f"?'  *T  '"'  "']*  """"""«  «  '''^^"s*^  who  have 'pene- 
trated mto  the  zone  of  operations  of  the  hostile  fleet  for  the 
pi-rpose  of  obtaininK  information,  may  not  be  eoas  dcred  a 
sp.es  but  are  to  be  treated  as  prisoners  of  war.  Sim  farl" 
oMiers  or  c,v,l,ans.  carrying  out  their  mission  openly  in- 
trusted with  the  deliverj'  of  dispatches,  or  engaged  in  Ir'ans- 
m.tt,ng  and  receiving  dispatches  by  wireless  fel^graph  "re 
no.  to  be  considered  spies.  To  this  elass  belong  iSe  per- 
-ns  sent  m  a.r-sh.ps  or  in  hydro-aeroplanes  to  act  as  scouts 
'n    he  z,»ne  of   .perations  of  the  enenj^  fleet  or  to  mair"! 

■J'^^r^-  '^^l  '^L  ""''"  '""'"'^^^  '"  ^^^''^P'"S  from  the 
»  cwT-^iK^mimg  to  the  enemy's  actual  sphere  of  opera- 

-"f.^  or  ^,  aas  rejomed  the  armed  force  to  which  he  be- 
^'■ngs.  ,f  ^l^  Mh  into  the  power  of  the  enemy,  hieurs 
m  r-sii«mit«iny  for  his  previous  acts. 

<i.f^^f^  f  ^^'/"'■•«''0"  "f  mtionah  of  the  enermi 
>Ute—G^^e*.  jnlots.  and  fwsfngcM.  A  belligerent  has  no 
■-.mt  m  ton*  persons  who  fall  into  his  power!  or  nationals 


192     Resolutions  of  the  Institute  of  International  Law 


of  the  adverse  party  in  general,  to  take  part  in  the  opera- 
tions of  the  wax  directed  against  their  own  country,  even 
when  they  were  in  his  service  before  the  beginning  of  the 
war,  or  to  compel  them  to  furnish  information  concerning 
their  own  State,  its  forces,  its  military  position,  or  its  means 
of  defense. 

He  can  not  force  them  to  act  as  guides  or  as  pilots. 

He  may,  however,  punish  those  who  knowingly  and  vol- 
untarily offer  themselves  in  order  to  mislead  him. 

Compelling  nationals  of  a  belligerent  to  swear  allegiance 
to  the  enemy  Power  is  not  permitted. 

The  taking  of  hostages  is  forbidden. 

Ahticle  70.  G.  Prisoners  of  war.  Prisoners  of  war 
are  in  the  power  of  the  hostile  government,  but  not  of  the 
individuals  or  corps  who  capture  them. 

They  must  be  humanely  treated. 

All  their  personal  belongings,  except  arms,  horses,  mili- 
tary papers,  and  all  objects  in  general  which  are  specially 
adapted  to  a  military  end,  remain  their  property. 

Aeticle  71.  Prisoners  of  war  may  be  interned  on  a  ship 
only  in  case  of  necessity  and  temporarily. 

Article  72.  The  government  into  whose  hands  prison- 
ers of  war  have  fallen  is  charged  with  their  maintenance. 

Article  78.  All  prisoners  of  war,  so  long  as  they  are 
on  board  a  ship,  shall  be  subject  to  the  laws,  regulations,  and 
orders  in  force  in  the  navy  of  the  State  in  whose  power  they 
are. 

Article  74.  Escaped  prisoners  who  are  retaken  before 
succeeding  in  escaping  from  the  enemy's  actual  sphere  of 
action,  or  before  being  able  to  rejoin  the  armed  force  to 
which  they  belong,  are  liable  to  disciplinary  punishment. 

Prisoners  who,  after  succeeding  in  escaping,  are  again 
taken  prisoners,  are  not  liable  to  any  punishment  on  account 
of  the  previous  flight. 

Article  75.  Every  prisoner  of  war  is  boimd  to  give,  if 
he  is  questioned  on  the  subject,  his  true  name  and  rank,  and 
if  he  infringes  this  rule,  he  is  liable  to  have  the  advantages 
given  to  prisoners  uf  his  class  curtailed. 


■ft  J 


K 


The  Oxford  Manual  of  Naval  War  193 

Abticu:  76.   Prisoners  of  war  may  be  set  at  liberty  on 
parole  ,f  the  laws  of  their  country  allow,  and.  in  such^s^f 

L^n  'h    \      '*!?'  *'''''  °^"  government  and  the  govern^ 

tChttrrfet^ "^  "^^  P^^-"'  '"^^  -«««-nts 

In  such  cases  their  own  government  is  bound  neither  to 

S  hStl^ V""S:  "^""^  ""  «°'""-ent  to  whom 
mey  nau  pledged  Iheir  honor,  or  aeainst  the  allin  of  tl..* 
govermnent.  forfeit  their  right  to  be^reated  as  ^-^^^^^^^ 
war.  and  can  be  brought  before  the  courts,  unless  "uW. 
quent  to  their  liberation,  they  have  been  inc luS  n  an  ^ 
conditional  cartel  of  exchange. 

Article  79.   Prisoners  in  naval  warfare  disembarked  on 
T^Z  "'^"*  *°  *'^  "^^^  ^^'^  ^°-  for'prillttnS 

sib  Jt  ^!^V'^'/*'°"'  '''""'^  ^  ''PP^'^^'  ^  ^«r  «»  pos- 
sibly to  prisoners  of  war  interned  on  a  vessel. 

them  ^^foir^'I!?  J^''  r'*'  *'  ^"  *^  '■*  •''  P°««ible  to  apply 
them,  be  followed  toward  prisoners  of  war  from  the  moment 
they  are  captured,  when  they  are  on  the  ship  which  tekes 
them  to  the  place  of  their  internment. 

tria^JTn"''-  ^^'Z  '^'  '°"^'"^'°"  °^  P^'^*^^'  the  repa- 
ss possible.^"'""'"  °^  ^"  '^'^"  ^  ^*^"^^  °"t  «»«  q»^<^Wy 

v£9;^rtppst^ 

e."":::i^at^ii;?^ff^,--Li^ 


H 


194    Rc'iolutions  of  the  Institute  of  International  Law 

the  sailors  and  soldiers  on  board,  when  sick  or  wounded,  as 
well  as  other  persons  officially  attached  to  fleets  or  armies, 
whatever  their  nationality,  shall  be  respected  and  tended  by 
their  captors. 

Article  88.  Any  war-ship  belonging  to  a  belligerent 
mcy  demand  that  sick,  wounded  or  shipwrecked  men  on 
board  military  hospital  ships,  hospital  ships  belonging  to 
relief  societies  or  to  private  individuals,  merchant  ships, 
yachts,  or  boats,  whatever  the  nationality  of  these  vessels, 
should  be  handed  over. 

Abticle  84.  The  shipwrecked,  wounded,  or  sick  of  one 
of  the  belligerents  who  fall  into  the  power  of  the  other  bel- 
ligerent are  prisoners  of  war.  The  captor  must  decide, 
according  to  circumstances,  whether  to  keep  them,  send  them 
to  a  port  of  his  own  country,  to  a  neutral  port,  or  even  to  an 
enemy  port.  In  this  last  case,  prisoners  thus  repatriated 
cannot  serve  again  while  the  war  lasts. 

Akticle  85.  After  every  engagement,  the  two  bellig- 
erents, so  far  as  military  interests  permit,  shall  take  steps 
to  look  for  the  shipwrecked  and  wounded,  and  to  protect 
them,  as  well  as  the  dead,  from  pillage  and  ill-treatment. 

They  shall  see  that  the  burial,  whether  by  land  or  sea,  or 
the  cremation  of  the  dead  shall  be  preceded  by  a  careful 
examination  of  the  corpse. 

Article  86.  Each  belligerent  shall  send,  as  early  as 
possible,  to  the  authorities  of  their  country,  their  navy,  or 
their  army  the  military  marks  or  documents  of  identity  found 
on  the  dead  and  the  description  of  the  sick  and  wounded 
picked  up  by  him. 

The  belligerents  shall  keep  each  other  informed  as  to 
internments  and  transfers  as  well  as  to  admissions  into 
hospitals  and  the  deaths  which  have  occurred  among  the 
sick  and  wounded  in  their  hands.  They  shall  collect,  in 
order  to  have  them  forwarded  to  the  persons  concerned  by 
the  authorities  of  their  own  country,  all  the  objects  of  per- 
sonal use,  valuables,  letters,  etc.,  which  are  found  in  the 
captured  or  seized  ships,  or  which  have  been  left  by  the  sick 
or  wounded  who  died  in  hospital. 


The  Oxford  ManuM  of  Kami  War  195 

present  regulation"™  hlS^Sn^^''"'"?'''"  f  ^ 
«pt  between  the  f  oree,  J^  on  SL X       "^"'^  "" 

HUNT  IN  Occupied  Tranm,v 

tion'^'StJi  °S^'Z,fS2^  f '*•  °™"- 
ports,  and  territorial  wTtereexi^^nl'  ^^  '?«'"=''*• 
the  same  time  an  oceunSfa;,  T  „  ?  ''  Y'i™  ""''  ■'»  «' 
either  a  naval  or  a  SC  for^  contmental  territory,  by 

o«e.  i,  subject  to  the  tl ^Z.^o^'Z^'^Z^^,  *" 
SECTION  VII._Ox  Con™.„„.s  Between  ..e.o„ei.e™ 

ssr^r  ™'^"'  ">'  °  p*-'  =-™4  :rr^ 

tate^nra^u"ntt"e:Srr„U,it^"r  """^r""  ■""" 

'^"sfci^ri;":"  ^"  t*^™  o1thetSfa«or 

opeSm  '"•    An  armistice  suspends  military 

not  raised,  mi  ess  by  a  special  stipulation  of  the  agreement 
cAisis  witn  regard  to  neutral  vessels. 


I 

II 


"'       '    # 


196    Retolutioru  of  the  Inatitute  of  International  Law 

AsTicUB  98.  An  armistice  may  be  general  or  partial. 
The  first  suspends  the  military  operations  of  the  belligerent 
States  everjrwhere;  the  second,  only  between  certain  por- 
tions of  the  belligerent  forces  and  within  a  fixed  radius. 

Aeticle  94.  The  agreement  which  proclaims  an  armis- 
tice must  indicate  precisely  the  moment  it  is  to  begin  and 
the  moment  it  is  to  end. 

An  armistice  must  be  notified  officially  and  in  good  time 
to  the  competent  authorities  as  well  as  to  the  forces  engaged. 

Abticle  95.  Hostilities  are  suspended  at  the  date  fixed 
by  the  agreement,  or,  if  no  date  has  been  set,  immediately 
after  the  notification. 

If  the  duration  of  the  armistice  has  not  been  defined,  the 
belligerent  parties  may  resume  operations  at  any  time,  pro- 
vided always  that  the  enemy  is  warned  in  good  time. 

Abticle  96.  The  terms  of  a  naval  armistice  shall  settle, 
in  cases  where  they  permit  the  approach  of  enemy  war- 
ships to  certain  points  of  the  enemy's  coast,  the  con- 
ditions of  this  approach  and  the  communications  of 
these  ships  either  with  the  local  authorities,  or  with  the  in- 
habitants. 

Article  97.  Any  serious  violation  of  the  armistice  by 
one  of  the  parties  gives  the  other  party  the  right  of  denounc- 
ing it,  and  even,  in  cases  of  urgency,  of  recommencing  hos- 
tilities immediately. 

Ahticle  98.  A  violation  of  the  terms  of  the  armistice  by 
isolated  individuals,  acting  on  their  own  initiative,  entitles 
the  injured  party  only  to  demand  the  punishment  of  the 
offenders  or,  if  necessary,  compensation  for  the  losses  sus- 
tained. 

Article  99.  Sugpenaion  of  arms.  A  suspension  of  arms 
must,  like  an  armistice,  determine  precisely  the  moment 
when  hostilities  are  to  be  suspended  and  the  moment  when 
it  ceases  to  be  effective. 

If  no  time  is  set  for  resuming  hostilities,  the  belligerent 
who  intends  to  continue  the  struggle  must  warn  the  enemy 
of  his  intention  in  good  time. 

The  rupture  of  a  suspension  of  arms  by  one  of  the  bel- 


The  Oxford  Manual  of  Naval  War  197 

fe"-'  °/_,¥,"«^»t«d  individuals  entails  the  consequences 
stated  in  Articles  97  and  98.  ««^uci«.c8 


I 


Section  VIII.-On  the  Foemalities  of  Seizure  and  on 
Phike  Phoceduhe 

^.^ru""^^^'  ^^^"^'^iities  of  seizure.  When,  after  the 
search  has  been  conducted,  the  vessel  is  considered  subject  to 
capture  the  officer  who  seizes  the  ship  must: 

them;  *"  *^^  ^^^^  ^^^"^  *"^''  ^'^'''^^  inventoried 

•  ^\  ^^ITx^P  *  '■^P'''^  °^  **•«  ^•^'"e,  as  well  as  a  short 
mventory  of  the  vessel  stating  its  condition ; 

tor.^  fh^^.!^^  T'^u'^V^  ^^^  '^'«''  ^^'^^  he  h««  inven- 
thr^Ll  i'''  hatchways  of  the  hold,  the  chests  and 

Jhem ;  '  ''^   "  *'  ''^^'^^^^^^  ^i"  Permit,  seal 

4.  Draw  up  a  list  of  the  persons  found  on  board ; 

5.  Put  on  board  the  seized  vessel  a  crew  sufficient  to 

^?r  «rT"  f  **'  '"*'"**'"  °'^^'  "P°"  it'  ^"d  conduct 
It  to  such  port  as  he  may  see  fit. 

'fJH  *!?"^'  ^*'.*^^  '^''P**'"  ^^y'  >"«tead  of  sending  a 
V  aboard  a  vessel,  confine  himself  to  escorting  it 
Article  101.    Except  for  persons  who  mav  be  consid- 
ered prisoners  of  war  or  who  are  liable  to  punishment  a  M- 
hgerent  may  not  detain  on  a  seized  ship^or  n^re  than  a 

hXts  VVT  ^^''^  "^^^""^  «^  -•*---  -  as  "rtailg 
It  hJhJ  f*;  Z  •"^"'r""*^'''^  «^«*«<='e«  he  must  set  them 
dLl^^p.         '^"  P'O'^'-^^rbal  of  their  depositions  has  been 

cer^^^JS^"'''^  circumstances  require  it.  the  captain,  the  offi- 
cers,  and  a  part  of  the  crew  of  the  captured  ship  may  be 
taken  on  board  the  captor  ^     ^ 

de  Jn^'*rnd'  st "ll  'f '"^  *°  *''"  'maintenance  of  the  persons 
aetemed,  and  shall  always  give  them,  as  well  as  the  crew 

AHTICLE102.    The  seized 


II 


ship  must  be  tak,    to  the 


near- 


108    Resolution*  of  the  Irutitute  of  International  Law 

est  possible  port  belonging  either  to  the  captor  State  or  to 
an  allied  belligerent  Power,  which  offers  safe  refuge,  and 
has  means  of  easy  communication  with  the  prize  court 
charged  with  deciding  upon  the  capture. 

During  the  voyage,  the  prize  shall  sail  under  the 
flag  and  the  pendant  carried  by  the  war-ships  of  the 
State. 

Article  108.  The  seized  ship  and  its  cargo  shall,  as  far 
as  possible,  be  kept  intact  during  the  voyage  to  port. 

If  the  cargo  includes  articles  liable  to  deteriorate  easily, 
the  captor,  so  far  as  possible  with  the  consent  of  the  captain 
of  the  seized  ship  and  in  his  presence,  shall  take  the  best 
measures  toward  the  preservation  of  these  articles. 

Article  104.  Destruction  of  vessels  and  goods  liable  to 
confiscation.  Belligerents  are  not  permitted  to  destroy  seized 
enemy  ships,  except  in  so  far  as  they  are  subject  to  con- 
fiscation and  because  of  exceptional  necessity,  that  is,  when 
the  safety  of  the  captor  ship  or  the  success  of  the  war 
operations  in  which  it  is  at  that  time  engaged,  de- 
mands it. 

Before  the  vessel  is  destroyed  all  persons  on  board  must 
be  placed  in  safety,  and  all  the  ship's  papers  and  other  docu- 
ments which  the  parties  interested  consider  relevant  for  the 
purpose  of  deciding  on  the  validity  of  the  capture  must  be 
taken  on  board  the  war-ship.  The  same  rule  shall  hold,  as 
far  as  possible,  for  the  goods. 

A  procds-verbal  of  the  destruction  of  the  captured  ship 
and  of  the  reasons  which  led  to  it  must  be  drawn  up. 

Article  105.  The  captor  has  the  right  to  demand  the 
handing  over,  or  to  proceed  himself  to  the  destruction  of,  any 
goods  liable  to  condemnation  found  on  board  a  vessel  not  her- 
self liable  to  condemnation,  provided  that  the  circumstances 
are  such  as  would,  under  the  preceding  article,  justify 
the  destruction  of  a  vessel  herself  liable  to  condemnation. 
The  captor  must  enter  the  goods  surrendered  or  destroyed 
in  the  log-book  of  the  vessel  stopped,  and  must  obtain  duly 
certified  copies  of  all  relevant  papers.  When  the  goods  have 
been  handed  over  or  destroyed,  and  the  formalities  duly 


The  Oxford  Manual  of  IVaval  War  wj 

v^.  °"'*'  •^  -^^  ■»""  "-  •"ow«l  to  oon«nu.  hi, 

ship  and  its  cargo,  and  thl  ISrf  Tn  .'"^^"to'T  o^  the 

with  the  accounfof  the    aptSeTo  ^h    ""  ''  ^^"*'  *°«^*^^' 
Akticle  107     7  «..  capture,  to  the  prize  court. 

be  carefully  ascertainerf     T^  m^  1  **"•  "■=  '"<*  must 

the   prfee   be  subJ^uLfy  atuW Vt"   ""V'' 
.^P^^e  .bat  the  ,1  „i  ^  tr^t:  ^Hbtt 

a.d1^Srd\t7cl"pTu  J™  ■'/■■•'  '""^  '«™  •""^ 
captor  only  has  the  rfeht  ,o  H  ""  ''"^'''"°'-'  »'  '■«' 

its  ^r™cL°f„  th'It^rj?"-  7'"  '"P*-")  --1  .„d 
m>  te  turnrf  over  wl  all  n™"  ""  f  ""  '^««'  S^le, 
competent  author!^  "^  <l"«unents,  to  the 

captr^flne":  Jr:S"'?thr  ""  T'"'"^  "'  «« 
established  befo^  a^I^"!:,'  "■"  """"'  »'  S"""'  ™>«t  be 

^broJSe'sll  o'^rSr.'-f!"*'  ^'""'  "■"  <"■""■"  f- 
iintn  ..,„i.  .'        '  ?  *'^''  "'"'  '"'"'  seized  durine  the  war 

hve  the  rSht'to^Z      '"^^  ^"?'  ^'^^  ^'^'^'^  '"t^^-^ted 
ave  tne  right  to  compensation,  unless  there  were  good  rea- 
sons for  capturing  the  vessel  or  the  goods.  ^ 


ft 


i 
1. 


F    i 

I    i 


b 


I'iiil  : 


200    ReiolutioTU  of  the  Inttitute  of  International  Law 

AsTicLE  114.  In  case  of  the  destruction  of  a  vessel,  th< 
captor  shall  be  required  to  compensate  the  parties  interested 
unless  he  is  able  to  justify  the  exceptional  necessity  of  tht 
destruction,  or  unless,  the  destruction  having  been  justified 
the  capture  is  subsequently  declared  void. 

The  same  rule  is  applicable  to  the  case  provided  for  ir 
Article  105. 

If  goods  not  liable  to  confiscation  have  been  destroyed 
the  OAvner  of  the  goods  has  a  right  to  an  indemnity. 

In  the  case  of  %  captor's  using  the  ship  or  the  cargo  aftei 
the  sei^  ire,  he  must,  if  his  act  is  held  to  have  been  illegal,  pay 
ti..  interested  parties  an  equitable  indemnity,  according  tc 
the  dociunents  drawn  up  at  the  time  the  vessel  or  goods  were 
used. 

Abticle  115.  Unlike  non-military  public  ships  and 
enemy  private  ships,  belligerent  war-ships  taken  by  the  ad- 
versary, as  well  as  their  materiel,  become  the  property  of  the 
latter  as  soon  as  they  fall  into  his  possession,  without  the 
decision  of  a  prize  court  being  necessary. 


Section  IX. — On  the  End  of  HosTiLrnEs 

Abticle  116.  Peace.  Acts  of  hostility  must  cease  upon 
the  signing  of  the  treaty  of  peace. 

Notice  of  the  end  of  the  war  shall  be  communicated  by 
each  government  to  the  commander  of  its  naval  forces  with 
as  little  delay  as  possible. 

When  hostile  acts  have  been  committed  after  the  signing 
of  the  treaty  of  peace,  the  former  status  must,  as  far  as 
possible,  be  restored. 

When  they  have  been  committed  after  the  official  notifi- 
cation of  the  treaty  of  peace,  they  entail  the  payment  of  an 
indemnity  and  tiie  punishment  of  the  guilty. 


Additionai.  Abticle 

In  conformity  with  Article  8  of  the  Hague  Convention 
of  October  18,  1907,  concerning  the  laws  and  customs  of 


The  Oxford  Manual  of  Naval  War  201 

WW  on  land,  the  beUigerent  party  which  violates  the  pro- 
rZ^^  ''"'*°*  regulations  shall,  if  the  case  demands, 
be  obliged  to  pay  compensation;  it  shall  be  responsible  for 


i   f 


li 


APPENDIX 


m*    tM    I 


if 


APPENDIX 

MR.   GOLDSCHMrors   DRAFT   REGULATIONS   FOR   IN- 
TERNATIONAL  TRIBUNALS  ' 

Preliminary  Remarki 

1  ^  *  *°  *'«  P'*''^"*  »^«  »»««  h.ve  been  no  generally  accepted 
rule,  for  the  formatton  of  international  arbitral  tribunaU  or  for 
the  procedure  in  such  tribunala. 

The  pre«nt  draft  i.  intended  to  pave  the  way  for  the  accept- 
ance of  .uch  rule,  and  to  .erre  a.  a  .ub.idiary  law  in  ca.e  of  doubt. 

The.e  regulation,  pertain  only  to  international  arbitral  tri- 
ouTuUt: 

,  1:  "'7  t»>«y  do  not  concern:  (a)  mediator.;  (6)  congrewe. 
of  State.;  (c)  permanent  mtemational  commi..ion.;  (d)  perma- 
nent  mternational  tribunal..  \   /  i^  u» 

2  They  concern  only  arbitral  tribunal,  which  are  to  decide 
dupute.  between  Statet. 


(a)  Thedutyof  mediator,  i.  to  bring  about  between  the  con- 
tending partie.  a  friendly  arrangement  or  a  reconciliation.  It  i. 
.matter  of  mdifference  whether  the  mediation  i.  requested  by  one 
of  he  two  partie.,  whether  the  mediator  ha.  offered  his  services 
to  the  partie.,  or  whether  the  parties  have  agreed  by  a  conven- 
tion to  request  or  to  consent  to  mediation,  should  a  dispute  arise, 
before  re.orting  to  force.' 

(6)  Congreue,  of  State,  decide  differences  with  or  without  the 
'"*'^°"*y  •«"*  *'*»»  o"-  'Without  the  cooperation  of  the  contending 

.'^nr  ''*J^"'  '""""«'««''  "  <>'  'fgi'l'tion  compart*,  toI.  ,|.  „.  491. 

•See  the  Tre.ty  of  P.rl,  of  March  30.  1M6.  ArticTe  9.  ^ 

Cf  Digest  (Corpv,  luri,  CMIU).  D»  re»pth.  4.  9.  13.  3;  De  iudMU  S   1   81 

MS 


il 

it 


206    Retolutiont  of  the  Institute  of  International  Law 

parties.    They  prescribe  obedience  to  their  decisions  or  impose  it 
bj  force.' 

(c)  Permanent  international  commistioni.  Examples:  Com- 
missions for  the  regulation  of  navigation  on  the  Danube  and  the 
Rhine,  at  times  with  jurisdiction.' 

(d)  Permanent  international  tribunali.  Such  an  institution 
is  unknown  in  existing  international  law,  and  obstacles,  difficult  to 
overcome,  seem  to  stand  in  the  way  of  its  creation  between  abso- 
lutely sovereign  States,  which  no  bond,  not  even  that  of  a  federa- 
tive constitution,  subjects  to  a  common  authority.* 

If  this  plan  could  be  realized,  it  goes  without  saying  that  it 
would  be  necessary  to  reach  an  agreement  on  fixed  rules  pertain- 
ing to  the  composition  of  the  tribunals  and  to  the  procedure.  It 
is  therefore  superfluous  to  examine  here  the  principles  which  it 
would  be  proper  to  sanction. 


: 


■ 


2 

Claims  brought  against  a  foreign  State  by  an  individual  may 
give  rise  to  an  international  arbitration,  in  so  far  as  the  State 
to  which  the  individual  belongs  takes  up  the  cause  of  its  subject 
and  executes  a  compromit,  or  itself  acts  as  a  party.  Such  cases 
frequently  occur  (claims). 

It  is  also  possible  that  an  actual  compromit  may  be  concluded 
between  an  individual  and  a  foreign  State.  In  such  an  event,  there 
is  no  occasion  to  deviate  from  the  principles  of  national  law  gov- 
erning such  a  compromit.     The  decision  of  the  arbitral  tribunal 


•Projects:  Grotius,  D»  jure  belli  ac  pari*,  11,  23,  8.  etc.  Circiilur 
of  Napoleon  III  of  1863  and  replies  of  the  European  Powers.  Aegidi  utul 
KInuhold's  Staattarrhir,  V,  nos.  918,  96+,  985.  Protocol  of  the  Declaration  i>f 
Aix-la-Chapelle  of  November  15,  1818.  Practice  of  the  Congresses  of  the 
Pentarchy.  Heffter,  Droit  det  Oent,  annex  XIII,  p.  2*0.  D.  D.  Field,  Oul- 
linet,  p.  538. 

Cf.  Die  vSlktrrechtliehe  Bedeutung  der  Staatencongreue  by  Witold  Zaioki, 
Dorpat,  1874. 

■The  Rhine  Navigation  Act  of  June  9,  1815,  Article  9,  of  Octolier  17, 
1868,  Article  4.3.  37  et  $tq.  Asscr,  Orcr  de  m>«ir*  Rynraartecontntu',  l>*i)!l. 
Rer^te  de  droit  intenatiotuii,  I,  pp.  494  tt  irq. 

•  Proposals  of  Messrs.  D.  D.  Field,  Outline;  535  et  eeq.;  E.  de  Ijivolivc 
Dei  rnutei  artuellei  de  guerre  en  Europe  et  de  I'arbitrage,  Brussels  and  Paris, 
1873,  ch.  IV-X. 


Appendix 


207 


shall,  either  by  itself  or  by  the  judgment  of  a  regular  judge,  be 
executory  also  against  the  State  involved,  regarded  purely  as  a 
financial  organization  (fUc) ;  that  is  to  say,  as  subject  to  private 
law.  The  only  question  which  can  eventually  arise  is  that  of  the 
effect  and  executory  force  of  foreign  arbitral  awards. 

What  is  to  be  understood  here  by  disputet?  Mr,  Trendelen- 
burg in  his  book  on  the  gaps  in  international  law  (LUcken  im 
Volkerrecht,  p.  21)  makes  the  following  perfectly  just  remark: 
"An  arbitral  award  may  not  be  rendered  excci)t  on  points  in  the 
international  dispute  which  are  of  a  legal  nature."  There  are  no 
grounds  for  a  judicial  decision,  nor  consequently  for  an  arbitral 
decision,  in  differences  which  arc  not  legal  disputes  (Rechtstreitig- 
keiten),  whose  nature  does  not  admit  of  a  judgment  according  to 
the  rules  of  law. 

It  is  true  that  recent  practice  in  the  United  States  of  America ' 
and  the  resolutions  lately  adopted  by  the  English  Parliament,  on 
the  motion  of  Mr.  Richard,  and  by  Jie  Italian  I  arliament,  on  the 
motion  of  Mr.  'mcini,  open  a  vast  field  for  arbitral  decisions  in 
international  dtlierences.  We  may  hope  that  the  compromU 
clause  will  become  more  am'  more  customary  in  future  treaties  for 
disputes  which  may  arise  bitwecn  the  contracting  States  as  to  the 
content  and  execution  of  the  treaty  in  which  the  clause  is  inserted. 
It  will  be  remembered  that  during  the  French  Revolution  there  was 
an  agitation,  which  naturally  did  not  succeed,  with  a  view  to  sub- 
stituting arbitral  tribunals  for  regular  tribunals.-  The  chances 
of  success  are  very  much  greater  in  the  international  field,  where 
there  is  no  question  of  discarding  an  organized  court,  but  of  open- 
ing the  way  for  a  court  and  of  restricting  the  appeal  to  force. 
However,  it  is  difficult  to  imagine  that  sovereign  States,  and 
especially  the  great  Powers,  will  ever  consent,  in  advance  and  for 
all  possible  cases,  to  submit  to  the  awards  of  an  arbitral  tribunal. 


'  See  Trtatie$  and  Contentiont  coneluded  bfttreen  the  Vnittd  :Hatei  of 
Amerira  and  Other  Slatei  iinre  Jul)/,  liTfi,  revised  ed.,  Washington,  1873. 
Kspecially  the  treaty  with  Chile,  18.58,  p.  130;  with  Wnerueln,  1866,  p.  895 
tt  ttq,;  with  Mexico,  1868,  p.  581  et  >eq.  (especially  as  to  the  last:  La  comiiion 
mixta  dt  rfelamaeionet  Meriranat  y  Amrrirann».  llintoria  by  Jos^  Ignacio 
Rodriguez,  Mexico,  1873);  with  Spain,  1871,  p.  921;  with  Great  Britain,  Treaty 
of  Washington  of  May  8,  1871,  p.  813  et  teq. 

'Dolloi,  Ripertoire,  new  ed.,  under  the  word  Arbitrage,  I,  no.  19  et  teq. 


t 


■f  i 


ll 


208    Besolutiotu  of  the  Irutitute  of  Intenuitional  Law 

Political  disputes  of  a  complex  nature,  in  which  questions  of 
nationality,  of  the  equality  of  righU,  of  supremacy,  constitute 
either  the  substance  or  the  latent,  but  real,  cause  of  the  difference 
— such  disputes,  we  say,  which  by  their  very  nature  are  not  so 
much  questions  of  law  as  of  power,  will  always  be  withheld  from 
such  a  mode  of  settlement.  Never  will  States  possessing  any 
power  of  resistance  bow  before  a  judge  when  their  supreme,  or 
reputed  supreme,  interests  are  at  stake.  The  best-intentioned  ef- 
forts will  perforce  fail  when  confronted  by  these  interests  and  tlic 
passions  which  they  arouse.  No  arbitral  tribunal  could  have  pre- 
vented the  centuries  of  struggle  between  England  and  France  with 
regard  to  the  English  claims  to  portions  of  French  territory,  or 
the  struggle  between  France  and  the  House  of  Austria  and  of 
Spain  for  dominion  in  Italy,  or  that  between  the  Dutch  and  the 
Spanish,  or  the  Thirty  Years'  War,  or  the  wars  between  Austria 
and  Italy,  Austria  and  Prussia,  Germany  and  France,  or  the  great 
American  War.  Neither  Louis  XIV  nor  Napoleon  I  would  ever 
have  consented  to  submit  to  arbitrators  their  claims  to  the  domin- 
ion of  the  world.  And  if  we  examine  the  carefully  collected  exam- 
ples of  international  arbitrations  at  various  times,*  we  shall  sec 
that  they  involved  disputes  suitable  for  judicial  decision,  because 
the  point  at  issue  was  clearly  defined  and  capable  of  being  decided 
by  principles  of  law.  Such  was  the  case,  to  give  a  specific  example, 
in  the  Anglo-American  compromii  in  the  Alabama  and  San  Juan 
cases. 

It  must  not  be  lost  sight  of,  however,  that  great  disputes  be- 
tween nations  seldom  have  reached  their  full  intensity  at  the  start. 
In  the  beginning  they  are  generally  germs  of  little  consequence, 
which  gradually  ripen  and  develop  until  they  become  menacing  to 

'Grotius,  11,  93,  8j  B.  G.  Strure,  /iimpriirf«ii<ia  htrofea,  Jena,  1T43,  ch.  1: 
Dt  obtirtantia,  judieio  »l  arbitrio  inter  ginttt;  CaWo,  DroU  i*ttrwitional,  2d 
ed,  vol.  1,  Paris,  1870,  p.  79«-797i  Pierantoni,  OH  arbitrati  inttmaxionali  t  it 
trattato  di  Weuhinglon,  Naples,  1872,  pp.  64-84;  De  LaTCleye,  Dii  eautti  ac- 
tutllu,  particularly  ch.  vl.  See  also  Bellalre,  B«>U«(m  dt  la  SoeUtf  det 
i4mi<  d»  la  paix,  no.  4,  July-August,  1879,  pp.  97  «(  teq.,  and  compare  W.  B. 
Lawrence,  Note  potir  ttrvir  a  I'kiiloir*  d*i  arbilragii  inttnatiimaMz,  A  propoi 
d*  Nlmd»  hUloriqut  dt  M.  Htnry  Bellairt,  In  the  Rtvut  dt  droit  intemalioital. 
vol.  vl,  1874,  pp.  117  et  ttq.  (in  which  Nott  Mr.  Lawrence  points  out  and  carefully 
corrects  the  errors  of  fact  committed  by  M.  Bellalre  In  his  work);  Barraull,  U» 
tribunal  inlfrnntional,  Geneva,  1879;  Dalloi,  under  the  word  Arbitrage,  I,  Iti. 


Appendix  209 

peace.  It  i.  therefore  quite  po.«ible  that  the  difference  maj  be 
kept  from  increasing  in  bitterness  by  a  timely  mediation  or 
arbitral  award. 

We  say  legal  dispute  (RechUtreit).  We  understand  by  that 
any  dispute  which  is  to  be  decided  by  principles  of  law.  Included 
in  this  class  are,  to  be  specific,  preUminary  questions  of  all  kinds, 
m  which  condemnation  is  not  asked  for,  but  merely  the  recogni- 
tion of  a  contention  or  even  a  declaration— for  instance,  as  to  the 
extent  of  a  territory  in  dispute  and  the  correct  interpretation  of 
a  treaty:  thus,  in  the  San  Juan  case  (Treaty  of  Washington  of 
May  8,  1871,  Article  84).  The  exclusion  of  disputes  as  to  pos- 
session»  IS  not  justifiable  by  the  rule:  Nam  potte$*oria  judkia 
jurii  chUU  tunt,  jure  gentium  potsidendi  jus  dominium  sequitur. 
In  effect,  the  reason  would  not  be  either  sufficient  or  just.  It  is 
true  that  the  arbitrator  must  not  confine  himself  to  passing  upon 
the  question  of  possession  when  he  is  asked  for  a  decision  on  the 
law.  But  there  is  nothing  to  prevent  his  deciding  first,  in  the  dis- 
pute on  the  law,  the  question  of  possession,  nor  is  there  anything 
to  prevent  his  deciding  the  question  of  possession  alone  when  the 
parties  ask  for  a  decision  on  the  question  of  possession  alone.* 

The  distinction  drawn  by  some  eminent  writers »  between  what 
i^  called  arbitratio  and  what  is  called  arbitrium,  properly  speak- 
ing, must  not  be  rejected,  as  Mr.  Bulmerincq  would  like  to  do,*  for 
the  reason  « that  proof  of  a  material  error  is  admissible  in  every 
international  arbitration."  But  it  needs  to  be  rectified.  It  is  in- 
correct to  say  that  in  an  arbitratio  it  is  a  question  of  applying 
a  principle  on  which  the  parties  have  already  come  to  an  agree- 
ment, while  in  an  arbitrmm  it  is  a  question  of  elucidating  a  dis- 


t 


I  ! 


'  GroUus,  III,  SO.  48. 

"Pufendorf.  Dt  juri  natura0  $t  gintium.  Book  V,  eh.  xiii,  I  6;  F.  W  wm 
^tumann,  D«  proc»„u  judicario  in  cauns  principium  comment.  (Jnt  prineip 
pnr  »oL  Till).  Frankfort.  1743.  Tit.  I.  |  19,  C.lvo.  I.  p.  T91.  See  .Iso  Haldl- 
matid,  Dttt.  jnr.  inang.  dt  modo  eomponendi  controvirtiat  inter  atqnalet  tt 
|>o(M«imMi»  de  arbitrii  compromuioriit,  Leyden,  1739,  |  139  (a  work  fre- 
qufnlly  cited,  executed  with  care,  but  treating  internation>il  disputes  only  as 
a  side  issue).  ' 

'See  Heffter,  I  109 1  Bluntschll.  i  488. 

•See  Holtiendorrs  Encyclopaedia.  Reehltlexikon.  II,  p.  414.  under  the 
word  SehudetprMck. 


I 
f 

i 
i    t 

if 

r 

r 

:   i 


ts  i 


»1   I' 


210    Resolutions  of  the  Institute  of  International  Law 

putcd  point  and  of  settling  it  according  to  law  and  equity.  Such 
is  not  the  difference  between  arbitrium  and  arbitratio.  On  the 
one  hand,  mere  questions  of  fact  are  not  by  any  means  exempt 
from  a  real  arbitral  decision,  and  the  fact  that  the  principle  itself 
of  ti:e  decision  is  already  determined  is  not  an  essential  character- 
istic of  arbitratio.  On  the  other  hand,  it  is  quite  possible  that 
the  legal  princi  les  to  be  followed  may  be  prescribed  for  arbiters 
properly  so  called.  Such,  for  instance,  was  the  case  with  the 
Geneva  arbitral  tribunal.*  The  eighteenth  century  doctrine '  that 
the  arbiter  properly  so  called  decides  according  to  principles  of 
law,  the  arbitrator  solely  according  to  equity,  is  not  well  founded 
either.  The  difference  between  arbitrium  and  arbitratio,  between 
arbiter  and  arbitrator  is  still  deeper,  and  it  is  only  by  a  clear  per- 
ception of  it  that  we  can  understand  the  following  important  rule: 
"  That  the  judgment  of  the  arbiter  is  absolutely  obligatorv, 
while  the  declaration  of  the  arbitrator  is  under  the  control  of  the 
judge  and  may  be  modified  by  him  contrary  to  equity." ' 

The  truth  is  as  follows: 

The  arbiter  must  always  decide  a  dispute  between  the  parties. 
If,  for  example,  they  disagree  as  to  what  convention  was  entered 
into  between  the  parties  or  what  obligations  flow  from  the  conven- 
tion, the  two  parties  aflirm  that  a  certain  content  of  the  treatji 
was  desired  in  common,  but  each  of  them  affirms  a  different  con- 
tent. In  so  far  as  concordance  of  intent  is  not  clearly  established, 
each  party  appeals  to  a  rule  of  law  which  is  favorable  to  him; 
likewise  as  to  the  time  or  place  for  the  fulfilment  of  the  obligation, 
as  to  the  currency  in  which  payment  must  be  made,  etc. 

The  arbitrator  *  must,  by  his  decision,  settle  a  point  which  the 
parties  did  not  settle,  but  which  they  left  open,  either  at  the 
time  the  convention  was  concluded  or  at  the  time  of  its  exe- 
cution, and  that  purposely  and  with  the  intention  of  having 
it  settled  later  by  a  third  party:  thus,  the  amount  of  a  pur- 


'  Artlrle  6  of  the  Treaty  of  Washington. 

"  Von  Neumann,  loc.  cit.,  i  20. 

•Dip-st,  Pro  tocio,  17,  3,  76:  "  Arbilrorum  #i«im  gtntra  ttint  dun,  vnurn 
eiuimodi,  ut  tire  aeqimm  »it  tine  iniquum,  parere  debeamtu  (quod  oh^ifrraltir, 
rum  ft  fumprnmitto  ad  arbitrum  itum  e$t),  altenrn  tiurmodi,  ut  ad  bnni  riri 
arbitrium  redigi  deb$at.  .  .   ." 

*  Taxcr,  8chdtztr. 


fc"!.-  ; 


Appendix  211 

chase  price,  of  shares  in  a  company,  of  a  storage  right,  the  quality 
of  a  work,  the  solvency  of  a  surety,  the  extent  of  damage,  the 
quality  and  quantity  of  goods  delivered,  etc.  The  arbitrator 
mutt  compute  in  the  place  and  stead  of  the  contracting  partiet, 
entering,  at  it  were,  into  their  minds,  the  determination  of  pomtt 
which  the  latter  have  left  incomplete.^ 

But  in  settling  such  points  the  rule  is  that  the  contracting 
parties  expect  from  the  arbitrator  an  equitable  decision,  that  is 
to  say,  in  conformity  with  the  circumstances,  and  that  if  they  are 
disappointed  in  this  expectation,  if  the  arbitrator  does  not  settle 
the  point  as  a  vir  bonus,  there  is  a  reductio  by  the  judge  ad  boni 
viri  arbitrium.' 

In  certain  cases,  however,  the  convention  is  interpreted  in  the 
sense  that  its  existence  and  cantent  must  depend  absolutely  on  the 
decision  of  the  designated  third  party  in  such  a  way  that  there 
may  be  neither  modification  nor  completion  by  the  judge,  but  only 
a  demand  for  damages  against  the  third  party  on  account  of 
fraud,  or  against  the  party  who  instigated  the  fraudulent  con- 
duct of  the  third  party.' 

It  is  certain  that  in  such  a  case  the  decision  of  the  arbitrator 
approaches,  in  its  practical  effect,  an  arbitral  decision  properly 
so  called.  Nevertheless,  even  then,  the  principle  to  be  adhered  to 
is  that  it  is  not  a  dispute  which  is  decided,  but  an  incompUte  con- 
vention which  is  completed.* 

It  may  be  difficult  to  draw  the  line  of  demarcation  in  a 
particular  case.  It  is  less  discernible  and  less  clearly  defined  ex- 
ternally in  the  law  of  to-day  than  in  the  Roman  law,  where  the 

'Digrst,  Pro  locio,  17,  S,  6  &  74-80;  Locali,  19,  2,  34,  pr.;  Qui  tatitdare 
cogantur,  2,  8.  9  &  10,  pr.;  Dt  verborum  obligationibui,  45,  I,  43  &  44;  Gaius  HI 
110-143.  ' 

•  See,  in  addition  to  the  texts  cited.  Digest,  De  divertit  reguUi  iurit,  SO,  17, 
2.1;  Dt  iurt  dotium,  23.  3,  69.  4;  De  oprri,  libf riorum,  38,  1,  30,  pr.;  Voet!  Coinm' 
«</  Pand..  IV.  8,  I  2;  GlOck,  .lutfiil  \  Krlaulerung  dtr  Pandtkten,  VI, 
66;  Andr#,  Otrntinrefhtliche  Qrundzuge  dtr  Srhiedtgericktt,  Jena,   1860,  38-43. 

•  Digest,  Dt  verborum  ohligationibut,  45,  1,  43-44,  and  especially  Code  {Corpus 
liiri,  f'Mlii),  De  confrahenda  emptione.  4.  38,  15;  cf.  with  Gaius.  Ill,  140-143; 
In.sfitutes  {Corpus  lurU  CwilU),  he  emptione  et  renditione,  3,  23.  1;  D«  loeatione, 
X  -'4.  1;  Code  Napolion,  1592;  Goldschmidt,  Manuel  de  Droit  commercial  I  9 
S  64,  n.  68  et  leq. 

'See  the  jurisprudence  of  the  Supreme  Court  of  Conunerce  of  Leiptig, 
Ueeiiion,,  HI,  pp.  74,  170;  IV,  p.  \M;  V,  p.  I.*};  VIII,  p.  110. 


ill, 


it 


i 

-   I 


[• 


212    Retdutions  of  the  Itutitute  of  International  Late 

penal  dauie  wm  the  rule  in  «  genuine  compromia.    There  ia  no 
doubt  M  to  the  principle  itself  of  delimitation.' 

In  treatiea  between  Statet  there  will  leldom  be  occasion  for 
any  doubt  It  is  evident  that  international  conventions  of  this 
kind,  where  the  intention  is  that  an  incomplete  arrangement  be 
completed  by  a  third  party,  must  regularly  be  interpreted  in  the 
sense  of  the  absolutely  obligatory  force  of  the  decision  of  the  third 
party,  since  mitigation  on  the  part  of  the  judge  is  not  even  pos- 
sible here. 

The  following  rules  concern  only  cases  where  States  have 
agreed  by  treaty  to  submit  to  an  arbitral  decision. 

They  lay  claim,  and  can  lay  claim,  only  to  a  subsidiary  force. 
The  convention  concluded  must  be  determinative  in  all  respects,' 

The  greater  the  care  and  detail  of  this  convention,  the  less  oc- 
casion will  there  be  for  resorting  to  subsidiary  rules,  which  must 
be  considered  merely  as  tacit  elements  of  incomplete  compromu. 
There  can  be  no  question  of  recognizing  that  they  have  any  force 
as  absolute  rules  against  the  compromu.  The  principle  jut 
publicum  prioatorum  pactU  mutari  non  poteit  is  not  admitted 
and  is  not  admissible  in  the  matter  of  international  treaties. 

ThobC  rules  are  drawn  in  the  first  place  from  the  practice — 
very  limited  in  truth — of  international  law.  In  the  second  place, 
they  are  the  result  of  independent  deductions,  in  which  we  have 
taken  into  account  legal  principles  accepted  in  the  matter  of 
arbitrations  in  various  civilized  countries.  These  principles  can 
not  be  utilized  directly,  first,  because  there  are  considerable  dif- 
ferences in  the  practices  of  different  countries  in  this  matter  also; 
then,  because  an  international  compromii  can  not  be  subjected  to 
all  the  principles  of  civil  arbitration,  but  requires  special  rules; 
finally,  because  all  direct  constraint  and  all  immediate  control  ex- 
ercised by  a  tribunal  superior  to  the  arbitrators  and  to  the  parties 
must  be  left  out  of  consideration. 

This  last  fact  furnishes  the  opponents  of  international  tri- 
bunals with  a  specious  objection,  both  those  who  wish  to  safeguard 

>See,  for  example,  Domat,  Droil  publir,  continuation  of  Loit  ciriUi  dam 
leur  ordre  naturel,  Book  II.  pt.  VII.  sect.  1,  f  3;  Dallo^  R4ptTtoire.  under 
the  word  Arbilraift,  ch.  11.  n.  49;  La  Comition  mixta  d«  rtelamaeiontt  Mfri- 
camat,  p.  94. 

"  Digest.  D»  rtetptit,  4,  8.  3rf.  15;  Hciendum  ft  omium  IraelaHim  #x  >pi3 
compromiuo  $utiundum. 


Appendix  218 

completely  the  liberty  of  States  and  those  who  extol  the  creaUon 
of  a  permanent  international  tribunal.  It  is  labor  lost,  they  say, 
to  attempt  to  regulate  legally  an  institution  whose  use  depends 
upon  the  pleasure  of  the  parties  interested,  whose  existence  and 
success  are  left  to  their  uncontrolled  arbitrary  will,  an  institution, 
in  short,  which  cannot  be  subjected  either  to  a  fixed  law  or  to 
definite  procedure.  Those  who  talk  thus  do  not  take  sufficiently 
into  account  the  power  of  international  custom  and  of  public 
opinion.  They  do  not  see  that  it  is  in  fact  more  difficult  to  re- 
fuse to  comply  with  an  arbitral  award  than  to  withdraw  from  a 
position  taken  unilaterally  and  not  determined  by  a  third  party, 
to  all  appearances  impartial.  Finally,  they  lose  sight  of  the  fact 
that  is  is  possible,  even  in  an  international  suit,  to  contest  success- 
fully the  award  rendered.' 

It  is  to  be  noted  that  the  rules  of  Roman  law,  particularly  of 
the  classic  law,  are  more  in  keeping  with  the  nature  of  interna- 
tional arbitration  than  the  legal  principles  governing  civil  arbitra- 
tion. In  the  classic  Roman  law  the  compromia  and  the  arbitral 
award  established  between  the  parties  a  purely  conventional  right. 
The  contravening  party  is  liable  only  to  a  demand  for  payment  of 
the  conventional  penalty  or  of  damages.  No  direct  constraint  is 
possible,  neither  is  any  direct  recourse.  The  idea  that  the 
arbitrator  renders  in  a  way  judgment  in  first  instance  is  foreign 
to  the  great  jurists  of  Rome.  The  result  of  this  is  that  in  the 
regulation  of  international  arbitration  it  is  possible  on  many  im- 
portant points  to  follow  to  better  advantage  the  Roman  law  than 
modern  laws  of  procedure.  Moreover,  the  Roman  law  forms  the 
foundation  of  most  of  the  codes  of  civil  procedure,  and  it  enjoys 
in  the  field  of  Anglo-American  law  also  the  high  authority  of  a 
written  reason.* 

The  principles  to  be  laid  down  concern: 

1.  The  conclusion  of  compromii; 

2.  The  formation  of  the  arbitral  tribunal; 
8.    The  procedure  before  this  tribunal; 

4.  The  arbitral  award; 

5.  Appeal  from  the  award. 

'See  below,  |  32  «(  $tq. 

•See,  for  example,  PhiUimore,  Commentarit,  m,  pp.  3^ 


I  i 

li 


I- 
si 

li 

.1 


w\ 


214    ReaolutioTU  of  the  Institute  of  International  Law 

Draft 

Skction  1.    The  international  arbitral  tribunal  decides 
legal  questions  between  two  or  more  States. 
See  preliminary  remarks. 

Draft 

Section  2.  An  international  arbitral  tribunal  presup- 
poses : 

1.  A  valid  international  compromU  (eompromitium). 

2,  A  valid  convention  between  the  makers  of  the  com- 
promis,  on  the  one  hand,  and  the  arbitrator,  on  the  other,  a 
convention  in  which  the  latter  undertakes  to  decide  the  dis- 
pute (receptum  arbitri).  If  the  arbitral  tribunal  is  to  be 
composed  of  two  or  more  persona,  there  must  be  a  valid  con- 
vention between  the  makers  of  the  compromia,  on  the  one 
hand,  and  each  of  the  arbitrators  on  the  other  (Section  9). 

These  two  constituent  elements,  eompromitium  and  receptum 
arbitri,  are  the  subject  of  no  doubt.  They  must  be  distinguished, 
as  they  are  in  Roman  law.  Each  of  them  is  governed  by  special 
rules. 

Draft 

Section  8.    The  compromit  is  concluded: 

1.  In  advance,  either  for  all  differences  or  for  differences 
of  a  certain  kind,  to  be  determined,  that  may  arise  between 
the  contracting  States.  The  compromit  is  concluded  in  this 
case  by  a  valid  international  treaty. 

2.  For  one  difference,  or  several  differences,  already 
ariten  between  the  contracting  States,  by  an  act  signed  by 
the  representatives  of  the  States  making  the  compromit. 

Section  4.  In  case  the  compromit  is  concluded  in  ad- 
vance for  future  differences,  the  competence  of  the  arbitral 
tribunal  extends  to  all  tl;*-  differences  mentioned  in  the  com- 
promit, in  so  far  as  this  competence  is  not  restricted  by  a 
subsequent  convention  between  the  makers  of  the  compromii. 

If  the  agreement  is  concluded  for  a  difference  already 
existing  between  the  contracting  parties,  this  difference  must 
be  clearly  specified  in  the  compromit  or  in  a  subsequent  corn- 
pi  iicntary  convention.  If  the  difference  is  not  suflScicntly 
specified,  the  compromit  is  null. 

Differences  arising  after  the  conclusion  of  the  compromit 
shall  not  be  brought  before  the  arbitral  tribunal. 


Appendix  215 

SicTiONi  8  and  4  are  intended  to  lettle  the  controversy  on  the 
foUomng  queition;  Aside  from  an  independent  compromit  prop- 
erly so  called,  should  a  more  or  less  general  convention  to  arbi- 
trate future  differences  (pactum  de  compromittendo,  compromu 
clause)  also  have  the  effect  of  a  valid  convention?  The  Roman 
law  says  yes,  provided  the  legal  situation  from  which  the  future 
difference  may  arise  be  clearly  specified.' 

Recent  German  codes  of  procedure  do  not  go  beyond  this— 
for  example,  the  Bavarian  Code,  Article  1319,  and  the  German 
Draft  of  1872,  Section  780.  The  conception,  according  to  which 
It  IS  possible  legally  to  conclude  in  advance  a  compromu  covering 
all  differences  whatsoever,'  is  not  well  founded  either  in  the 
jurisprudence  or  in  the  sources  of  the  common  law.  The  recent 
jurisprudence  of  the  French  Court  of  Cassation  interprets  Arti- 
cle 1106  of  the  code  of  procedure  more  strictly  still.'  And  Anglo- 
American  law  does  not  recognize  the  legal  effect  of  any  compromu 
except  those  concluded  with  respect  to  differences  already  arisen.* 

Nevertheless  we  do  not  hesitate  to  give  to  international  com- 
promu clauses  the  moit  general  force,  and  consequently  to  rec- 
ognize also  those  bearing  upon  aU  future  differences  On  the  other 
hand,  the  serious  and  deliberate  will  to  bind  themselves  may  never 
be  questioned  in  conventions  between  States.  And  if,  on  the  other 
hand,  the  compromit  clause  considerably  restricts  the  liberty  of 
States,  it  is  not  at  the  expense  of  the  regular  courts,  but  in  order 
to  supply  a  deficiency  in  them.  The  international  compromu 
clause  must,  therefore,  be  favored. 

It  is  clear,  however,  that  if  no  method  were  indicated  for  form- 
ing the  arbitral  tribunal  against  the  will  of  either  of  the  parties, 
the  clause  would  be  ineffective  for  thit  reason.^ 

What  other  material  and  formal  conditions  will  be  required  to 
make  an  international  arbitral  compromit  valid?  This  is  a  com- 
plex question:  it  is  partly  international,  partly  subject  to  the  pub- 
licUw^of  each  contracting  State.     With  respect  to  the  first,  it  is 

'  Digest,  Dt  rtctptu,  4,  8.  31,  6;  ♦,  8,  43;  4,  8.  33,  IS. 

"  .See,  for  example.  Windscheld,  Lehrbuch  der  Pandtcten.  U,  |  416.  ad  fin 
Cf.  Andr^,  p.  26  et  nq.  ' 

'Oalloi,  under  the  word  Arbitrage,  ch.  VII,  no.  431  tl  ttq. 
'Bouvler,  A   Law  Dictionary,   Uth   ed.,   1870,  II.  under  the  word  Submit- 


% 

c  t 


I 


.»,    i 


'"i",  nu.  c. 


'  See  below,  (  4. 


216    Ra6lutwn$  of  the  Itutitute  of  International  Law 

■uflcieiit  to  refer  to  the  general  principles  of  international  law 
pertaining  to  the  condition*  required  to  make  treaties  valid.' 
With  respect  to  the  second,  it  will  be  necessary  to  consider  in 
particular  to  what  extent  the  authorised  agents  of  the  contract- 
ing States  require  the  consent  of  the  national  representative  bodies 
of  their  States  either  to  conclude  the  compromtM*  or  to  appoint 
the  arbitrators.* 

The  requirement  of  an  authentic  document  establishiiig  the 
eompromit  is  in  keeping  with  the  importance  of  the  subject  and  the 
usages  of  international  law. 

The  rules  of  Section  4  proceed  directly  from  the  nature  of  the 
eompromit.    They  are  universally  recognized.* 

It  is  for  the  arbitral  tribunal  to  decide  by  interpretation  what 
differences  are  included  under  the  general  designation,  as,  for  ex- 
ample, Alabama  Claimi* 

Draft 

Section  6.  The  valid  eompromit  gives  to  each  contract- 
ing party  the  right  of  appealing  to  the  arbitral  tribunal  that 
it  designates  for  the  decision  of  the  dispute.  In  the  absence 
of  a  personal  designation  of  the  arbitrator  or  arbitrators  in 
the  eompromit,  the  course  to  be  followed  in  the  formation  of 
the  arbitral  tribunal  is  determined  according  to  the  provi- 
sions laid  down  by  the  eompromit  or  by  another  convention 
(see  Section  6).  In  the  absence  of  provisions,  each  of  the 
contracting  parties  has  the  right  to  choose  an  arbitrator  on 
his  own  part.  If  the  arbitrators  chosen  cannot  agree  upon 
the  award,  they  may,  in  so  far  as  they  have  been  empowered 
by  the  contracting  parties,  choose  an  umpire.  Ratification, 
either  express  or  tacit,  of  the  choice  made  by  the  arbitrators 
is  equivalent  to  authorization. 

In  the  absence  of  authorization,  the  contracting  parties 
must  agree  upon  the  choice  of  an  umpire  or  upon  a  third 
person  who  shall  schct  the  umpire. 

If  the  parties  can  not  agree,  or  if  the  person  designated 
refuses  to  make  the  selection,  or  if  one  of  the  parties  refuses 


•  Heffter,  nroil  intirwlioiuit,  I  81  «(  $tq.;  Calvo,  |  548  «t  ttq. 

•  Ernst  Meyer,  Uebtf  d**  Abithliui  ton  Staattt0rtriig*n,  LeipiiK,  1874. 

•  Plerantoni.  OK  arbitrati  iutirnazionali.  pp.  8,  9. 

•  Digest,  D»  Ticiptii.  4,  8,  31,  6;  4.  8,  3:2,  li  &  91)  4,  8,  46;  Canon  I^w,  D«. 
Greg.  IX,  D$  arbitrit,  I,  43,  3;  Cod*  d*  proeidurt,  Article  1006;  Dalioz,  tnr.  fit., 
eh.  VII,  no.  460  el  leq.:  Bararian  Code  of  Procedure.  Article  1319;  Bouvier,  I, 
under  the  word  Atcard,  no.  1.     La  Comition  mixta,  pp.  30-99,  93.         '  See  {  1»' 


Appendix 


817 


the  coBperation  that  it  ow««  under  the  compromi,  for  the 
loTff^r  "'*'*'•'  *"'*'"''•  ""'  co«pra«M  become,  of 

Section  6.  If  .t  the  out.et  or  bcc.u.e  they  have  been  un- 
able to  come  to  an  agreement  upon  the  choice  of  the  arbi- 
;«*l!?!'i    ITw*^/'°*  ?*r*'"  •'•^'  ■«'«**  »»>•*  the  arbitral 

tJlm  L  »^^  i°"^  ^I  '  *'''"*  P"'""  d«iK"*ted  by 
them,  and  ,f  the  de..gnated  perwn  take,  upon  himself  the 

to  th,.  end  .hall.  ,n  the  fir.t  i„.tance.  be  in  accordance  with 
the  provuion.  of  the  conpromu.  In  the  ab.cnce  of  provi- 
..on..  the  dcgnated  third  per.on  propose,  nine  per.on.  at 

K'fk  P*^  "'?  T:^"^*  *'""•*  °'  *'«■'«'•  «nd.  i'  more 

than^three  remain  on  the  lut.  the  third  per.on  .elect,  three 

If  one  of  the  partic.  refuw.  it.  cooperation,  the  three 

SL"?u"J'  "  '*  •!"  .*''*  "«*•*  *°  eliminate  are  eliminated  by 
the  third  per.on  by  lot.  ^ 

The  Roman  law  .trictly  obwrve.  the  principle  that  the  arbi- 
trator  mu.t  be  a  judge,  choien  by  the  two  parties,  and  it  deduce, 
all  the  consequences  that  proceed  therefrom.  Individual  designa- 
tion of  the  arbitrator,  in  the  compromu  is  therefore  e.sential;  at 
most  an  alternative  designation  is  authorized."  It  is  not  even  per- 
mitted to  entrust  the  election  of  the  umpire  to  the  arbitrator. 
But  the  magi.trate  ha.  the  right  to  appoint  one  if  the  arbitrators 
are  unable  to  come  to  an  agreement.' 

Modem  practice  .ometime.  goe.  beyond  these  narrow  limits 
It  I.  deemed  .ufficient,  if,  when  there  i.  no  designation  of  arbi- 
trators m  the  compromu.  their  selection  is  not  left  to  the  parties 
themselves.  Arbitrators  are  permitted  to  appoint  the  umpire. 
Even  a  compromu  clause  simply  to  the  effect  that  each  contract- 
ing party  shall  appoint  an  arbitrator  is  consid.  red  valid,  and  the 
judge  makes  the  appointment  in  case  of  refusal.  This,  however, 
u  contested  both  in  German  common  law  and  in  French  law.  The' 
'"P''^'"g  courts  generally  sanction  stricter  principles.' 

•  Digest,  D«  rietptit.  4,  8,  39,  S;  4,  8.  17,  ♦. 
•M»iii,  4,  8,  IT.  S^. 

•  Voet,  Comm.  ad  Pond.,  IV,  8,  |  13;  Glack.  loc.  cit..  p.  84,  Andr«.  loc  cit 

£^■"1       '  "''^'''''  '^™'"  •*""  "'  ^■•^'  »'  Civil  P^cedurr.  pp.  ,99, 
ra3-787j  BouTier,  under  the  word  Arbitrator.  |  2.  *^^ 


I! 


f    • 


218    Setolution*  of  the  Ituiitute  of  International  Law 

It  u  clesr  that  the  practice  in  civil  procedure  can  not  be  fol- 
lowed abaolutelj  in  international  law. 

In  the  flnt  place,  there  can  be  no  question  of  the  appointment 
of  arbitrators  or  of  an  umpire  by  the  ordinary  judge — an  appoint- 
ment which  would  seem  to  be  better  suited  to  a  forced  arbitration 
than  to  a  voluntary  compromit. 

Neither  can  it  be  absolutely  assumed  that  a  compromit  bear- 
ing upon  two  specific  persons  will  also  give  power  to  appoint  an 
umpire  in  rase  of  disagreement.  For  the  codperation  of  two  arbi- 
trators offers  a  better  guaranty  than  a  decision  of  a  majority  of 
two  out  of  three,  and  it  is  not  certain  that  the  umpire  chosen  will 
have  the  confidence  of  one  or  the  other  of  the  parties,  and  still 
less  likely  that  he  will  have  the  confidence  of  both.* 

Very  remarkable  provisions  are  found  in  the  international  com- 
promit recently  concluded  by  the  United  States  of  America.  Ac- 
cording to  the  treaty  concluded  with  the  Republic  of  Venezuela 
(1866),  the  two  arbitrators  chosen  by  the  parties  choose  the  um- 
pire. If  they  do  not  come  to  an  agreement,  the  choice  is  made 
by  the  representative  of  Switzerland  or  of  Russia  at  Washington. 
According  to  the  treaty  concluded  with  Mexico  in  1868,  the  two 
arbitrators  chosen  by  the  parties  appoint  the  umpire.  If  they  ilu 
not  reach  an  agreement,  each  of  them  names  one,  and  in  each  cnsi' 
to  be  heard  it  is  decided  by  lot  hich  of  the  two  umpires  shall  art. 
Finally,  the  Treaty  of  Washington  constantly  follows  the  rule  that 
of  several — three,  four,  or  five — arbitrators,  two  are  appointed  liy 
the  parties,  and  the  third,  fourth,  or  fifth  is,  or  are,  appointed, 
in  the  first  instance,  either  by  the  parties  by  common  agreement, 
or  eventually  by  the  head  of  a  neutral  State.' 

This  last  provision  contains  an  idea  that  is  new  and  fruitful. 
There  is  nothing  to  prevent  the  selection  of  the  entire  tribunal, 
just  as  well  as  the  selection  of  an  umpire,  whether  it  is  composed 
of  one  or  of  several  persons,  from  being  entrusted,  in  the  first 
instance,  to  an  impartial  third  person.  The  designation  made  by 
such  a  third  person  capable  of  forming  the  arbitral  tribunal,  in- 

^^  Domat,  Droit  publir.  Book  II,  pt.  VII,  |  2;  Hefftrr,  I  100; 
Calvo,  I,  I  667  (p.  791);  PhiUimorr.  Ill,  p.  4;  Bulmerincq,  Ion  ri(.,  p.  416; 
Burner,  In  tho  Slaatntorlirbiich  of  Bluntsrtili  and  Brntrr,  VI,  p.  193.  To  the 
nppnxitr  rffrft,  firr  Bhmfxphll,  Droit  inltrnalional,  p.  495. 

•  Articles  1,  10,  li,  23. 


C(    f  JK'C/l 
■    .1     f    Hi. 


head,  a 
a  civil 
or  the 

'  "IS    '    ".titutoii 

'ii"  -  •  i>u ration,  as 
'ir  'i,l),ir.i  tr.  The 
■'■-,"  '  >'*  is    aid  down 


Appendix  2io 

dependentl,  of  the  will,  of  the  partie..  according  to  rule.  el«where 
aj^  upon  or  determined,  .u.t  .uffl<.  to  n,L  the  c^Z, 

U.f'*.T'il**/'"T''  ""•'"'  *''"*  <=«"'di«on..  to  proceed  by 
vama,  and  according  to  the  Constitution  of  the  United  States' 
ba.^"      are  the  con.ideration.  upon  whJ'    Section.  5  and  6  arc 

We  .hall  add  two  remark*. 

If  the  compromu  designate,  i       r.-r,   ,-  „! 
municipality  or  other  secular  or      c      .      i,,i' 
or  eccle.iastical  authority,  a  1«>  .      ., ,  i,    .  „ 
actual  head  of  a  muncipalit;-,  t  >• , 

an  individual  detignation  of  r.  <  rbur.t<, 
a  whole,  or  the  academy,  etc.,  „.,,,„,  ,, 
course  which  it  is  to  follow  in  pi'v-ur     .. 

by  the  principles  governing  its  resolutions  i„  ^.„  ,..,.  n  ^j,,  . 
proper  however  to  draw  up  special  re;,  >,,  ,.,  ,„h.  ,.  ..ew  to  «uch 
cventuahties.  Th.s  concerns  especially  ..  ...,i:,u-  of  Interna- 
tional Law,  .f.t  should  some  day  be  designated  an  an  arbitrator. 

«,kT  »  "T  7  ''*'"'''  ^  *■""'  '''  '""*-"*'  "'  ♦he  duties  of  «„ 
arbitrator  the  selection  of  one  or  more  arbitrator,  or  of  an  um- 
pire or  the  formation  of  a  complete  arbitral  tribunal  were  en- 
rusted  to  a  State.  If  such  a  duty  were  committed  to  the  Insti- 
tute, .t  would  be  well  to  elaborate  regulations  capable  of  giving 
the  partie.  desirable  guaranties  of  conscience,  of  competence,  and 
of  impartiality.  '^ 

Draft 

the  H^^'°^■^•    '^t  '"""*'"«  "'"  •"'^*I'*»''^'  "f  performing 
the  duties  of  an  arbitrator :  '  '  K 

Persons  less  than  fourteen  years  of  age. 
Persons  in  a  state  of  insanity. 
The  following  may  be  challengicf: 

1.  Persons  less  than  twenty-one  years  of  age. 

2.  Persons  of  the  female  sex. 

3.  Dumb,  deaf,  or  .leaf  and  dumb  persons. 

.  .*•  ,?*'"""''  '^'"''  a<-cordir,fr  to  the  law  of  the  country  to 
__which  they  belong,  are  deprived  of  their  civil  rights. 

■•Src  Dtftlin,  eh.  VI IT,  nos.  7»H-7!»«1, 

■lield.  Outline,.  Article  SM;  Bouvier.  under  the  word  Arbilralion.  p.  3. 


I  if 


220    RetdutioM  of  the  Irutitute  of  International  Law 

5.  Persons  who  are  personally  and  directly  interested  in 
the  outcome  of  the  dispute. 

6.  Subjects  of  either  of  the  contending  States. 

None  of  these  grounds  for  challenging  may  be  invoked  by 
the  party,  who,  in  spite  of  the  fact  that  the  existence  of  the 
grounds  was  known  to  him,  chose  the  person  in  question,  or 
who  fails  to  notify  to  the  adverse  party,  within  a  period  of 
thirty  days  from  the  time  that  he  learned  of  the  grounds, 
the  fact  that  he  challenges  the  arbitrator. 

It  is  a  matter  of  indifference  whether  the  choice  was  made 
by  one  party  only  or  by  the  two  in  common,  or  by  a  third 
person.  The  appointment  of  an  umpire  by  the  arbitrators 
selected  is  on  the  same  footing  as  a  selection  made  by  a  third 

party. 

Section  8.  If  the  parties  have  legally  agreed  on  p.rbi- 
trators  individually  determined,  the  incapacity  of  or  a  valid 
exception  to  even  a  single  one  of  these  arbitrators  voids  the 
entire  compromu,  unless  the  parties  can  come  to  an  accord 
upon  another  competent  arbitrator. 

If  the  compromu  docs  not  carry  an  individual  determina- 
tion of  the  arbitrator  in  question,  it  is  necessary,  in  case  of 
incapacity  or  valid  exception,  to  follow  the  course  prescribcti 
for  the  original  choice  (Sections  6  and  6). 

In  civil  codes  and  in  codes  of  civil  procedure  the  reasons  for 
incapacity  or  challenge  arc  cither  not  determined  or  determined  in 
very  different  ways.  The  doctrine  and  practice  likewise  are 
divergent.' 

It  goes  without  saying  that  insane  persons  and  minors  must  be 
absolutely  excluded.  Other  persons,  from  whom  it  docs  not  ap- 
pear that  an  entirely  judicious,  reasoned,  and  impartial  decision 
can  be  expected,  may  be  challenged  by  either  of  the  parties,  but 
this  is  not  obligatory.' 

This  enumeration  of  the  grounds  for  challenging  is  restrictivf. 
It  is  beyond  doubt  sufficient.  Many  codes  of  procedure  contain 
the  provision  that  the  grounds  for  challenging  judges  should  also 
be  grounds  for  challenging  arbitrators.  This  is  a  good  idea,  but 
it  could  not  be  applied  in  international  law,  if  only  because  of  tlie 
divergency  of  national  laws.  When  sovereigns  who  are  minors  or 
of  the  female  sex  are  chosen,  it  will  be  in  full  knowledge  of  the 

'  .Sff,  for  example,  Dalloi,  ch.  VI,  VII. 

•  Digest,  Ot  rtceptit,  4,  H,  6-7  &  9,  pr.  &  I  I ;  /)<  re  iudicala,  ii,  1,  iT. 


Appendix  221 

facU  and,  even  if  it  were  not,  it  would  still  be  difficult  to  chal- 
lenge them.  Hence  there  is  no  occasion  to  consider  the  question 
that  in  international  law  heads  of  States  are  reputed  capable  of 
rendering  an  arbitral  decision,  whatever  their  sex  and  age.' 

The  natural  difference  between  arbitrators  designated  indi- 
vidually by  the  compromu  and  those  chosen  afterwards  is  clearly 
shown  in  the  consequences  of  incapacity  and  of  challenging  (Sec- 
tion 8).* 

Draft 

Section  9.  No  one  is  compelled  to  accept  the  office  of 
arbitrator. 

The  declaration  of  acceptance  is  made  in  writing  and 
must,  if  so  prescribed  by  the  compromu,  contain  assurance 
of  a  just  and  impartial  decision.  It  is  sufficient  to  declare 
acceptance  to  one  of  the  parties. 

The  fact  of  assuming  the  duties  of  arbitrator  may  take 
the  place  of  a  written  declaration. 

Skction  10.  An  arbitrator  who,  after  having  acr cpted, 
either  by  a  written  declaration  or  by  the  fact  of  assuming 
the  duties,  withdraws  without  the  consent  of  the  makers  of 
the  compromu  and  without  just  cause,  or  who  fails  in  some 
other  way  to  fulfil  the  obligation  he  has  assumed,  mav  be 
prosecuted  through  legal  channels,  before  the  regular  com- 
petent judge  by  either  of  the  parties,  upon  pavment  of  an 
amount  equivalent  to  the  expense  incurred. 

The  provisions  of  Section  9  are  in  conformity  with  the  usages 
of  international  law.  See  also  our  remarks  on  Section  3,  and  Book 
3,  Section  1,  De  receptit.  4,  8.  In  Roman  law  there  was  direct 
constraint  by  means  of  fines  imposed  by  the  magistrate  to  force 
execution  of  the  receptum.  Moden;  law  has  renounced  this.  It 
goes  without  saying  that  there  could  be  no  question  of  this  where 
international  arbitrators  ure  concerned.'  It  is  true  that  in  16.54 
the  makers  of  a  compromu  provided  for  the  eventuality  of  con- 
straint*    However,  it  seems  to  be  proper  to  oblige  an  arbitrator 

'Canon  L*w,  Dtc.  Greg.  IX.  t)e  arhitri,,  I,  43.  I. 

•See  Codt  dt  procedure,  lOli;  Bavarian  Cod.'  of  Procedure,  1331;  German 

'Domat.  Droit  puhlir,   Book    IF.   ,,t.  VII,  i   i-   Bouvier,  under  the  word 
Arbitrator,  no.  4j  I'hillitnor.-.  Ill,  p.  4. 
•  Voet,  Comm.,  IV,  8,  |   14. 


f  !m-, 


2?9    Resolutioru  of  the  Inatitute  of  International  Law 


M 


who  withdraws  for  slight  reasons  to  pay  an  indemnity,  the  more 
so  since  considerable  interests  may  easily  be  compromised  by  his 
•ct.  In  this  respect  the  Roman  idea  is  perfectly  correct.*  It  is 
for  the  judge  to  decide  whether  the  arbitrator  has  just  grounds 
for  withdrawing.' 

Draft 

Section  II.  If  an  arbitrator  refuses  the  arbitral  duties, 
or  if  he  withdraws  after  having  accepted  them,  or  if  he  dies, 
or  if  he  becomes  insane,  or  if  he  is  legally  challenged  on  any 
of  the  grounds  mentioned  in  Section  7,  the  provisions  uf 
Section  8  are  to  be  applied.' 

International  compromis  frequently  contain  provisions  in  this 
sense.*  The  arbitrators  remaining  may  be  granted  the  right  tu 
complete  their  number  by  cooptation.' 

Draft 

Section  12.  If  the  seat  of  the  arbitral  tribunal  is  not 
mentioned  in  the  compromit  or  in  a  subsequent  convention 
between  the  parties,  its  determination  is  made  by  the  arbi- 
trator or  by  a  majority  of  the  arbitrators. 

The  arbitral  tribunal  is  authorized  to  change  its  scat 
only  in  case  the  accomplishment  of  its  functions  at  the  place 
agreed  upon  is  impossible  or  clearly  dangerous. 

The  scat  of  the  arbitral  tribunal  is  important  from  the  stand- 
point of  the  (wssibility  of  an  arbitral  decision  that  is  impartiul 
and,  above  all,  free  from  any  outside  influence.  Therefore,  it  is 
regularly  determined  in  the  compromis  or  in  a  sub8e<]uent  convi'ii- 
tion  between  the  parties.' 

The  importance  of  the  seat  of  the  arbitral  tribunal  is  increased 

'  OiKest,  />«  ree0ptu,  4,  H,  ii,  I;  4,  8,  15;  4,  H,  U.',  1.';  Buvarian  Coile  of  Vnt- 
crdurf,  13J3. 

'  See  also  Dallox,  rh.  VII,  nos.  liji  el  trq. 

'  Sre  remnrks  on  i  8;  Difirst,  hr  rtcrpii*.  4,  H,  9,  3;  4,  8,  3.',  14;  Voet,  Cumm,, 
h.  t.,  »  i\;  Vode  <i«  prucidure,  l()08,  KM.',  1014;  Diillox,  ch.  VII,  nos.  J7S  rt  *../, 
Mi  ft  itif.,  Ci(i  ft  t»q.;  navariun  Codf  of  Prot-edurc,  1331;  Uenimii  ilrall, 
n  785,  787. 

•Trrafy  of  Woshinirton,  Articles  I,  10,  \1,  Ti\  Treaties  lirlwrtii  tlw 
I'liiled  .Stales  and  .Spain,  Article  1;  I'nited  .States  and  Mexico,  .\rticle  1;  I  lutnl 
Stllll■^  iind  Veneiuela,  .\rticle  I. 

'  Ste   I).   I).  Kield,  Outline;  «  535. 

•  Trenty  of  Washin|;ton,  Article  -'  (Ceneva),  Article  10  (W«sliln(rton,  Hik- 
ton,  or  New  York,  alternatively),  .\rticlc  1>  ( \Va!>hin)rtiin ;  but  the  con\eii(wn 
of  Jan.   \H,  1873,  gives  the  arlntrator   fret  choice),  Article  iS  (Halifax). 


Appendix  228 

?Lt:^)"''   ''''''"  °"    ^^^--'^-^  -PP^-'   '-   the   award 

Th«  Roman  law  prescribed  observance  of  the  provision,  of  th. 

co^promis  relating  to  the  seat  of  the  arbitral  t'r  brnT     It  t 

/orcr  Tnajeure,  senous  epidemics,  etc.  ^ 

Draft 

Section  13.    The  arbitral  tribunal  may  appoint  one  of 

?r^rh  r?t?  ■".•'r'^*^*  °"« '"•  "">-  Starr 

gua«es  .ts  dehbcration.  and   the  arguments  of  tfe   parties 

St     K^uZ'  ""'^  *''*'  documents  and  other  instrJmonfs 
ofjroof  shall  be  presented.    It  keeps  a  record  of  its  dehW 

Section  14.    All  members  shall  be  present  at  the  dclib- 

tSrVl    '^:  r'''*'*'  *"^"""'-     ^he  tribunal  majnev  Jl 
theless  delegate  to  one  or  several  members,  or  even  commit 
to  third  persons,  the  drawing  up  of  a  protocol, 
ot  J;  •"■^;!'-''*'"'  "  *  State  or  its  head,  a  municipal  or 

socttv^rSo'v".""*'"'-:.'*^'  *  ''''•"'*-^  °'  '-•'  -  '--•-" 

society,  or  the  actual  president  of  the  municipal  or  other 
corporation   or  authority,  faculty,  or  company,  all  the  ar^^- 

rtheTri: >*"''.'  P'^'r  •"''  -  '^^  ~'«ionc.r-  named  «rw 
by  the  arbitrator      A  protocol  thereof  shall  be  drawn  up 

stitute""'  "  "''•*"*'"'  "  ""*'"'"=^"1  *°  "«-  «  -b- 

If  there  is  a  substitution  with  the  consent  of  the  parties 
place  of  the  original  arbitrator.  ^ 

The  principles  of  Sections  U  and  15  proceed  from  the  very 
nature  of  the  compromit  and  of  the  acceptance. 

Only  duly  installed  arbitrators  may  pronounce  judgment.' 

The  option  that  continuous  custom  has  accorded  to  the  heads 
of  States «  to  have  the  award  made  by  a  court  of  their  State  or 
bywmmissioners  is  an  unavoidable  drawback;  but,  legally  speak- 

'  Di(frst,  Dt  rteeptii,  i,  S,  21,  10. 

MexL^;rUc'",c"'"''"''  '"""''  "'  ^'•'"""'^*'"-'  '^'"'"'  "•  '«•  «>  T,..ty  with 

mrl^'arl'  ^'  "7.''\*'  "•  "=  "'"  '■"^rromi,.!.  arbUrium  p,r»ona»  in.*rtum 
P^'.o«a«  HO,  f,redUur."  Cf.  ♦.  H.  3^.  «i  1,!.  17;  Canon  I.a«..  Dec.  Gr.,  IX. 
i"  "rf.^r.,.  I,  4:,,  13;   Bouvier.  »„.lcr  the  word  .Irhitrator    I  *  ' 

<■  alvo.  I,  p.  791 ,   Blimtschli.  S  489.  '        ' 


riiBir-iBT«i-rTi-n'  -"  fTr-''«^i-'rf'iiiiTniinrim' 


I  I 


.a,,    .f 


224    Retolutiotu  of  the  Institute  of  International  Law 

ing,  it  is  not  an  exception  to  the  rule,  inumuch  M  in  l»w  the 
•ward  of  the  court  or  of  the  commiuioner  is  rendered  as  the 
award  of  the  head  of  the  State  in  whose  name  it  is  pronounced. 

It  is  necessary  also  strictly  to  observe  the  rule  that  the  parties 
have  counted  upon,  and  have  the  right  to  count  upon,  the  con- 
tinuous cooperation  of  all  the  arbitrators.  The  absence  of  one  of 
them  prevents  a  valid  deliberation  and  decision,  even  though  the 
others  should  agree  and  should  form  a  majority.  In  effect,  the 
absent  member,  by  expounding  his  opinion,  might  have  modified 
that  of  the  others.'  If  such  is  not  the  intention  of  the  partits, 
they  may  insert  an  alternative  clause  in  their  compromit:  Ule  aut 
Hie,  a  thing,  however,  that  does  not  frequently  occur.'  It  is  tru. 
that  the  canon  law  allows  arbitrators  to  deliberate  and  decide 
among  themselves,  in  the  absence  of  one  of  their  number  legally 
convoked.'  It  is  true,  furthermore,  that  Voct  *  approves  this  pm 
vision,  and  that  Philiimore  is  of  the  same  opinion.  But  this  pro- 
vision has  not  been  accepted  in  European  practice,  which,  on  tin' 
contrary,  very  properly  maintains  the  provisions  of  the  Roman 
law.'  If,  therefore,  it  is  not  possible  to  have  a  deliberation  and 
decision  of  the  complete  tribunal,  the  absent  arbitrator  is  consid 
ered  as  having  withdrawn  after  acceptance,  and  Sections  11  and 
8  arc  to  bo  applied. 

But  representation  by  commissions  should  suffice  for  the  draw- 
ing up  of  the  protocol  and,  in  the  case  provided  for  in  Section  U, 
paragraph  S,  for  all  the  arguments  and  deliberations.*  The  prac- 
tice is  similar  when  the  arbitrator  is  a  sovereign.' 

Droit 

Section  16.  If  the  compromit  or  ii  subsequent  conven- 
tion between  the  parties  prescribes  the  procedure  to  be  fol- 
lowed by  the  arbitral  tribunal  or  the  observance  of  a  de- 


•  Digest,  Dt  rrreptii,  4.  8,  17,  9  &  T;  ♦,  8,  19;  ♦,  «,  39,  13. 

•  Idem,  4.  «,  8i  4,  H,  17,  4;  4,  8,  39,  13. 

■  Canon  Law,  Lib.  VI  Oec.,  De  arbitru,  I,  29,  9. 
•t'omin.  ad  PnnJ.,  I„  I,  i  16. 

•  Doniat,  Lf  loir  ririht  JnnM  leur  ordre  nalurti,  Book  I,  pt.  XIV,  spct. 
II,  I  5;  Glilok,  VI,  80;  Code  de  prorfdure.  Articles  1011-1019;  Dallon,  rh.  V!!, 
nos.  fill-fiUl;  Draft  of  flic  Code  of  CJerman  Procedure,  I  787;  BouTler,  under  thf 
word  Arbitrator,  no.  %    S<e  also  Heffter,  I  109;  Bluntadili,  |  491. 

•  See   the   remarks  on  f   6. 

'  Treaty  of  Wiisliington,  Article  39. 


■itKXJU'TJiSSSB:: 


Appendix  225 

I  ode  of  Procedure.  ArtiHi.  i '*'*<»    „u-  i  ..  bavarian 

*,  I   ♦    k       .     L   ..     '^'^"'^''    '^*'  *hjch  prcscnlM's  that  tli<    arhi 
tral   tribunal  shall   conform   to   the   nror«l„r.>     (  ♦u 
which  it  i.  constituted,  must  f.  rL^^:^  1"'  ,*'*"  T"*^'  '" 
in    international    arbitration.      In'tt    Md^r'":  tr""'' 

were  general.,  not  r«,uired  to  ob.!!;;  W  ',  j  ^ed':  '^"7 
question  is  not  a  disputed  one  to-da.v/  ("-"^^tlure.       The 

des'^Ind'^'!  f*"  '^T"'""  ^"''''"^^'  '•^""'■"  fundamental  princi- 

It  goes  without  saying  that  the  procedure  will  b..  ,..or.  detailed 
or  more  summary  according  to  the  circumstances  of  th^ca  e      , 
w  not  possible  to  lay  down  general  rules.  ' 

Draft 

'See   Domat,  Loi>  ciri/**,  Book   I,  pt.    \\\    .«..    i    .    ,      .     ,   ,    . 

-.  rc,u,a.,„„:  ./;i^y%'^p2r  L -"tS''";.;''.'';''' '"'  "'■"""  ^"^-^  -'- 

".-".er  as  they  m.y  think  prof^Tr"  '  '    '^     '"  ^"'"^  "'''"  «"''  '"  ^"^^ 

-«^V'^v:LI^T;l:;e^'*'^'':,  V  •"•  '^  ■•*•  ^'  ''■'  ^-*^  -»«•  chue. 

H'.u,H,ions  ofT'ciJLI    Ion  'f"'  r'.":'   '^"'''"•^   ''  '   f"^*""-"  -»••  th* 

•'•'ly    ,  1H73).  f^      '   '*'""'  *   (»'f"'l"tions   of  tin-   Commission  of 


'rl 


M 


11:1 


n 


226    Retolutiont  of  the  ItutUute  of  International  Law 

Thi*  goM  without  saying.  Neverthelets,  if  the  diipute  ii  of 
little  importance,  some  other  luitable  arrangement  may  suffice.* 

Draft 

Section  18.  The  arbitral  tribunal  is  the  judge  as  to  its 
competence.  If  exception  to  its  competence  is  not  taken  at 
the  first  opportune  moment,  or  if  an  exception,  taken  in  suf- 
ficient time,  has  been  rejected  by  the  arbitral  tribunal,  and 
the  parties  proceed,  without  making  reservations,  any  further 
contest  as  to  its  competence  is  excluded. 

This  is  disputed,  though  wrongly,  in  civil  arbitration."  The 
correct  opinion  is  substantially  upheld  by  the  Supreme  Court  of 
Commerce  of  Leipzig  against  the  Supreme  Court  of  Berlin.*  The 
danger  of  excess  of  competence  does  not  warrant  preliminary 
intervention  by  the  official  tribunal. 

In  international  arbitration  there  is  the  further  reason  that  a 
preliminary  procedure  is  impossible.  The  entire  operation  of  liu' 
arbitral  court  could  then  be  paralyzed  by  an  exception  takin  to 
its  competence.  It  goes  without  saying  that  the  way  must  be  o|mii 
for  appeal  on  the  gr  >und9  of  excess  of  competence.  It  reniiiiris 
to  be  seen  whether  the  arbitral  tribunal  would  be  authorized  to  re- 
fuse to  make  a  decision  on  the  groundtt  that  a  question  of  in- 
competence had  been  raised.  In  the  present  state  of  the  system  of 
ap(>eal,  there  are  determinative  reasons  for  the  negative.* 

Mr.  Rolin-Jae«iuemyns  very  justly  remarks  that  the  question 
■»f  competence  should  not  be  considered  by  a  strict  interpretation 
f  the  compromu,  but  that  in  case  of  doubt  it  should  be  decidwl 
I  the  affirmative.  In  effect,  this  deciding  the  question  in  the  uf- 
tirmativc  is  not  an  infringement  on  the  competence  of  a  regular 
tribunal.  On  the  contrary,  it  renders  possible  the  judicial  decision 
of  a  point  which  otherwise  would  remain  in  dispute.    Anglo-Aimri- 

'       •  Treaty  of  Washington,  Artirlrs  i,  13,  23,  38. 

•  DalIo«,  ch.  X.  nos.  9m  el  itq. 

•rVclsioiis  of  thf  .Supreme  Court  of  Commerce,  II,  pp.  164,  199;  IV,  M-'; 
VIII,  ?26;  Draft  of  German  Civil  Procedure,  i  791. 

*  .See  il  'ii  el  teq.  See  also  Plerantoni,  (Hi  arhilrali  internazwnali,  pp.  9H  el 
seq.;  Pra<tier  Fod*r<,  La  queelion  de  I'Alahama,  Paris,  I97j;  Kolln-Jaecpiriiiytis 
Het>ue  de  droit  international,  IV,  IM  et  teq.;  niuntsrhll,  i  *92,  a;  Trealif  oml 
Conrenlione,  notes,  p.  965:  "A  mixed  oonmil.ssion  \s  competent  to  decide  upon  tlif 
extent  of  Its  jurisdiction."  Cf.  p.  UH9,  in  particular  no,  3;  on  tlie  olln  r  ^iJ<■, 
see  MolttendorlTs  KncyclopaeUia,  Rechlilerikon,  -.'d  e<l.,  I.  9<i9. 


Appendix  227 

in  iU  interpreUtion  '«  '*"'  con.tructio„  i.  dlow«i 

municate  them  to  the  ^v«r«  «  ^  j"*  *'^'''«"»«'«.  com- 

..  th,  dk~d  eo„t,„t.  o/d^™L      ?'I*T  '""J''  ••  ••" 

•".i-o«,o,„;;':s"L"Xj^'««'.  p'«-'"'7  ..on. 

lion,  (o,  Ih.  .ri,i,„taV     '  "S"!.!.™.  ..  .ppropr,.,o  i,.,™.. 


|Bou»lfr.  under  the  word  S„bmi»H»m  no.  7 

H  TM-TW;   B.v.H,n  Code  of  P^LLe    im  For  1   ^".    ''"^'"'• 

""ot.  (D.ttttUotht  T«>.»v  „/ w    K    1  "^  production  of  do«i- 

ISi  Treaty  with  Mexico.  ArticH  '^  "'  ^..hlngtoa.  Article,  4. 


228    Betolutiotu  of  the  Itutitute  of  IntematiotuU  Law 

duuiee  with  a  eiUtion  cm«iiating  from  the  arbitral  tribunal, 
It,  aa  well  ai  the  parties,  muat  be  heard  on  what  it  advaneet. 
Volontarj  intervention  is  not  admiMible. 
These  provisions  are  to  be  commended  in  the  interest  of  get- 
tbg  at  the  truth  and  to  obviate  disputes  in  the  matter  of  guar- 
anties. 

Draft 

Skctiom  21.    Counterclaims    cannot    be    brought    before 
the  tribunal  except  so  far  as  permitted  by  the  compromii,  or 
except  when  the  two  parties  and  the  tribunal  are  in  accord  in 
admitting  them. 
This  follows  directly  from  the  conventional  limitation  of  com- 
petence.' 

Draft 

Section  22.    Unless  the  arbitral  tribunal  is  permitted, 
either  by  the  compromU  or  by  a  subsequent  convention  of  the 
contracting  parties,  to  decide  simply  according  to  its  equi- 
table judgment,  or  unless,  on  the  contrary,  it  is  prescribed 
that  it  decide  according  to  definite  rules  agreed  upon,  the 
legal  judgment  of  the  facts  of  the  case  will  be  rendered  in 
conformity  with  the  principles  of  law  which  are  applicable 
by  virtue  of  the  rules  of  international  law. 
There  was  considerable  agitation  of  the  question  whether  the 
arbitral  tribunal  should  decide  according  to  law  or  according  to 
equity.    In  the  first  place,  it  is  necessary  to  come  to  an  agreement 
as  to  the  real  extent  of  the  opposition  thus  formulated.     If  there 
exist  in  a  State  two  systems  of  positive  legal  rules,  a  system  of 
ttrict  law  and  a  more  liberal  system  of  equity,  then  it  is  natural 
that  the  arbitrator  should  apply  equity  in  so  far  as  it  can  suiScc. 
Hence  the  Anglo-American  principle  that  the  arbitrator  is  author- 
ized, in  case  of  doubt,  to  judge  ae  aequo  et  bono.*    Where,  on  the 
contrary,  this  double  system  of  positive  law  does  not  exist — and 
such  is  at  present  the  ease  in  all  the  countries  of  the  European  con- 
tinent— the  only  question  that  can  be  raised  is  whether  the  arbi- 
trator should   apply   the  existing  law,  whether   this  law   appear 
equitable  or  not,  or  whether,  discarding  all  potitive  Itgal  rulee,  he 

■  l>iyr»t.  Df  r»r»pti»,  ♦.  S.  *l.  •;  Csnoa  Ijiw,  Dec.  Gren-  IX,  0«  arbitri;  1. 
4.%  * ,  I)«llni.  <  li   VII,  iii>  469;  on  the  ethrf  side,  mm  Neumaaa,  lor.  tit..  I  19. 
*  Bou«    r,  under  the  word  Arbitrator,  no.  3. 


Appendix  220 

I.t.  ud.  could  not  be  «lmitt«l.    Therefore,  dl  the  countrie.  of  our 
continent  .re  m  .ccord  in  recognizing  that  the  arbitrator  i.  bound. 

»T:u    ""^'  •'"'*  "  *''*  "^'"^  J*"***'  •PP'y  equitably.' 

But  the  compromi,  may  provide  to  the  contrary,"  and  it  is  quite 

pouable  al.o  that  certain  fixed  principle,  n.ay  be  p';.cribed  for'  the 

arbitrator,  to  .erve  a.  rule,  for  hi.  deci.ion.«    Such  a  preeo  iption 

""S^atThe  r*  •'*"*:   ■"    •"'ringenH.nt   on    the    ab.olute    principle 

X  di.pir  •  '*  ""•  ""^ '"  "^  ^'^  ^'"•*''"  *»-  ''-•- 

Mig  to  the  principle,  of  cxi.ting  international  law.     He  will  «„n|v 

nVL'tr'TK'"""'-^':*'  '"  '"P"*'^  '"^  international  law  exf.t^ 
ing  between  the  part.e.  by  virtue  of  treatie.  or  ru.tom;  in  the  ,ec- 

Wnd1„7heT«     •T"'ff'*"'*'  ••-'  »«>  'J'-P^ted  point,  of  another 

appear,  to  be  apphcable  according  to  the  principles  of  interna- 
tional law:  English.  French.  Italian.  German  law.  etc.' 

Draft 

Section  23.    The    arbitral    tribunal    cannot    refuse    to 

l^b:'*a';p.i°e3.*'^  ''^*-  °'  °"  ^''^  '^^-^  pn-nciplc-^hat 
_ver.y.     Neverthele...  if  the  compromi,  doe.  not  provide  for 


'  See  the  prelimiiuiiy  remarks. 
mX  pT^'^Tn'i.  "k    '.!,'!^^  '•  ■'•  •  '■'  ^»"  ^■~.  »  *«  von 

«-«or.rs„;7h'';,':;r" '" '"""'  '•"•"  •"**  ^'""' "««'  -Th^ 

.„  «wi||i«ns  shall  decide  er  nrquo  el  innn" 

•S^O."^  three  n.le,  of  Ar.ide  6  of  the  Treaty  of  Washington. 
Olgest.  Dt  rtcpht,  4,  8,  IT,  .1;  4,  H.  19,  pr 

"ne  or  tne  M«e<i  of  the  <lrri<  on.     Th  «  is  oerfertlr  rnrr,^*   .i—        i.i 

mint  lv»  Int. A  J  F'^rieriiy  correct,  since  positive  law 

must  be  Interpreted  and  applied  e<iuitahly.  i~»«"e  law 


880    Re»olutum$  of  the  Inttitnte  of  International  Law 

•  simultMMOui  deflnitive  (kciiion  of  all  the  potnti,  the  tribunal 
may,  whik  deciding  dcflnitirely  certain  pointi,  rcecnrc  the 
others  for  a  later  proceeding.' 

81CTION  24.  The  delivery  of  the  final  decision  muat  take 
place  within  the  time  fixed  bj  the  compromii  or  bj  a  tubee- 
quent  convention.  In  the  absence  of  other  determination, 
the  period  of  two  years  is  considered  as  agreed  upon,  begin- 
ning from  the  day  of  the  conclusion  of  the  compromU.  The 
day  of  conclusion  is  not  included  therein,  nor  is  the  time  dur- 
ing which  the  arbitral  tribunal  may  have  been  prevented  by 
violence  on  the  part  of  one  of  the  parties  or  by  a  third  State 
from  discharging  its  duties. 


'> 


The  laws  insist  upon  the  obligation  to  observe  rigorously  the 
agreed  upon  or  legal  period.  (The  latter  is  three  months  in 
French  law.)  It  goes  without  saying  that  it  may  be  extended. 
This  right  is  expressly  mentioned  in  various  international  treaties; 
for  example,  in  the  compromi*  between  the  United  States  and 
Mexico.  It  appears  to  be  appropriate  to  have  this  period  run 
from  the  day  of  the  conclusion  of  the  compromit.  However,  there 
are  divergencies  in  the  civil  laws.  A  great  variety  of  periods  it 
found;  for  example,  in  the  Treaty  of  Washington,  Articles  7,  14, 
24,  and  in  the  treaty  with  Venezuela,  Articles  4  and  5.  It  appears 
to  be  proper  also  to  extend  this  period  in  case  the  attendance  of 
members  of  the  tribunal,  even  of  a  single  one  of  the  arbitrators,  is 
prevented  by  force. 


Draft 

Section  25.  Every  final  or  provisional  decision  shall  be 
made  by  a  majority  of  all  the  arbitrators. 

The  deliberation  and  decision  must  take  place  in  common, 
even  in  case  of  a  subsequent  valid  appointment  of  an  um- 
pire (Section  5).  If  one  or  more  of  the  arbitrators  refuse  to 
take  part,  a  decision,  in  which  the  umpire  has  by  his  partici- 
pation brought  about  an  absolute  majority,  is  an  arbitral 
award. 

If,  even  with  the  participation  of  the  umpire,  there  is  not 
an  absolute  majority,  the  tribunal  must  advise  the  parties, 
and  the  compromit  is  void. 


'  Code  XapoUon.  i;  OigMt.  Da  rtftplit,  4,  fl,  19,  I;  h  9,  21  pr.  &  |  3|  4,  H, 
23  pr.  &  I  1;  4,  8,  3i,  I6-17j  4,  8,  4.1;  Bouvirr,  undrr  the  word  Attard,  no.  i. 


Appendix  gsi 

TW  «rf  the  general  principle  of  dWl  arbttral  tribund..* 
The  rule  that  •  mere  plurality  i«  „ot  .ufllcient.  but  that  an  abw- 
luU  majority  «  necewary  •  and  that  thi.  latter  can  not  be  ob- 
tam«l  againtt  the  will  of  the  arbitrator./  mu.t  be  obeeryed.  It 
mu.t  further  be  recogniwd.  in  c^  of  doubt,  that,  if  .„  agree- 
ment ..not  reached,  the  deci.ion  of  the  umpire  doe.  not  con.titutc 
an  arbitral  award  until  it  bring,  about  an  ab^lute  majority.  For 
even  in  caie  of  diaagreement.  the  umpire  i.  not  called  in  in  the  ca- 
pacity  of  .ole  arbitrator.  The  contrary  i.  not  .tated  by  law  17. 
Section  6.  De  receptu,  4.  8:  "  Caja,  auctoritaU  pareatmr  "  • 

Von  Neumann  hold,  the  oppoeite  opinion,  which  «*m.  to  pre- 

'';»il".f"f^  a    '^  •""•  '"^'^  '•  "^^P^^  in  -on^'  recent  treatie. 
of  the  United  State..* 

It  i.  .uperfluou.  to  point  out  that  the  arbitral  tribunal  may. 
before  rendering  >t.  award,  .ubmit  propo,aU  of  cmpromue  to  the 
pArti^t. 

By  w  doing  it  i.  not  excettiing  it.  competence,  but  it  i.  act- 
ing ouUide  of  It.  function.,  and  it  might  thereby,  in  given  cir- 
cum.t.nce..  .hake  the  confidence  that  the  partie.  have  in  it.  im- 
partiality and  ju.tice. 

Draft 

Section  26.    If  the  arbitral  tribunal  find,  that  the  conten- 
lon.  of  neither  of  the  partie.  are  e.tabli.hcd.  it  mu.t  Zl.« 
thu.  and  If  It  ..  not  limited  in  thi.  re.pect  by  th^c^mTomU 
It  mu.t  lay  down  the  real  .tate  of  law        ^         compromu. 

Thi.  ca.e  may  ariw.  e.pecially  in  the  matter  of  disputed 
boundane..  Each  party  claim,  a  certain  line,  and  the  true  line 
..  perhap.  between  the  two.  I„  .uch  a  case,  the  arbitrator  will 
act.  Urnng  .tipulation.  to  the  contrary,  a,  .  real  arbiter  finium 

•  On  the  other  »lde.  Plerantonl.  p.  90. 

'SilI''!rvn^'*^'T"-  '"•"■'"  '•  "»•  ''■'  '""y  *"^  Mexico.  Article  9. 
mUot,  ch.  VII.  nos.  Ui,  850;  Bluntschll,  i  493 


•MOOCOPV   IfSOUITION   TCST  CHAIT 

(ANSI  and  ISO  TEST  CHART  t^   2) 


I.I 


|J0     •■■ 

y^ 

■  2.0 

1.8 


A  APPLIED  IIVMGE    Inc 

— '.^  «oc"e5'er.    New    rorh  '4609        uSA 

'■JB  (7t6)    482  -  0300  -  Prion* 

JBB  C16)   i88  -  ^989  -■  Fo. 


m 


282    Uetolutiotu  of  the  Institute  of  Intermtumd  Law 

regundorum.  It  would  be  otherwise,  however,  if  he  were  called 
upon  to  decide  merely  as  to  the  relative  merits  of  the  conflicting 
claims,  as  was  the  Emperor  of  Germany  in  the  San  Juan  case.' 

Draft  ^        J       ,   ^ 

Section  27.  The  arbitral  award  must  be  reduced  to 
writing  and  signed  by  each  of  the  members  of  the  arbitral 
tribunal  with  his  own  hand.  If  the  minority  refuses  to  sign, 
the  signature  of  the  majority  is  sufficient,  with  the  written 
declaration  that  the  minority  has  refused  to  sign.' 

SECxnN  28.  It  is  valid  for  the  arbitral  tribunal  to  add 
to  the  award  a  statement  of  its  reasons.  This  statement  is 
necessary  only  if  the  compromit  so  prescribes.  The  reasons 
must  be  signed  in  the  same  manner  as  the  award  (Section 

27).*  ,  ,    . 

Section  29.  The  award,  with  the  reasons  if  stated,  is 
notified  to  each  party.  The  notification  is  effected  by  com- 
munication of  a  copy  to  the  representative  of  each  party  or 
to  an  empowered  agent  of  each  party  appointed  ad  hoc. 
Even  if  it  has  been  communicated  only  to  the  representative 
or  to  the  empowered  agent  of  one  party,  the  award  can  no 
longer  be  changed  by  the  arbitral  tribunal.  The  tribunal, 
however,  has  the  right  to  correct  mere  errors  in  writing  or 
reckoning,  even  when  neither  of  the  parties  makes  a  motion 
to  that  effect,  and  to  complete  the  award  on  undecided  dis- 
puted points,  on  the  motion  of  one  party  and  after  a  hear- 
ing of  the  adverse  party.  An  interpretation  of  the  award  as 
notified  is  not  admissible,  unless  both  parties  request  it. 

The  guiding  principles  in  this  matter  are  developed  very  pre- 
cisely in  the  laws  19,  Section  1, 21  pr,,  26  pr.  Section  1.  De  receptis, 
4,  8.  The  right  to  change  arbitrarily  after  notification  can  not  be 
allowed,  as  Mr.  Bulmerincq  would  like.*    We  must  take  into  consid- 

'  Treaty  of  Washington,  Article  34 1  "  Which  of  those  claims  it  mott  in  ae- 
eordance  with  the  true  interpretation  of  the  treaty  of  June  14,  184«."  Ameri- 
can Law  R$vUy),  January,  18T4,  p^    .*0  tt  uq.;  Phlllimore,  III,  p.  6,  n.  1, 

•  Cod»  dt  procidur»,  1016;  Bavarian  Code  of  Procedure,  Article  1338;  German 
draft,  I  793;  Bouvier,  under  the  word  Avard,  no.  5;  Treaty  of  Washington, 
Articles  7,  10,  13,  43. 

■Digest,  D»  rtctpti;  4,  8,  19;  GlUck,  VI,  p.  91;  Bouvier,  under  the  word 
Arbitrator,  p.  4.  The  French  law  prescribes  a  statement  of  reasons  (see  re- 
marks on  I  16);  Dalloa,  ch.  XI,  no&.  lOil-1055.  The  German  draft  does  like- 
wise, but  it  is  inconsistent,  |  795,  no.  55. 

*  See  the  Encyclopaedia  of  von  HoltsendorfT,  Reckttltnkon,  under  the  word 
Sckiedtipruch,  II,  p.  417. 


Appendix 


288 


cration  the  danger  of  a  subsequent  change  under  the  pretext  of  in- 
terpretation.' 

Draft 

SzcnoM  30.  The  award,  when  dulj  pronounced  (Sec- 
tions 24  29),  decides,  within  the  limits  of  its  scope,  the  dis- 
pute between  the  parties. 

The  clause  frequently  inserted  in  the  cotnpromU,  "  that  the  par- 
ties bind  themselves  to  comply  with  the  award,"  or,  "that  they 
bind  themselves  to  recognize  the  award  as  absolutely  and  un- 
equivocally obligatory,"  is  superfluous  and  of  no  effect  legally. 
The  direct  effect  of  the  arbitral  award  is  generally  recognized  in 
modern  law.  Unless  there  be  a  convention  to  the  contrary,  none 
of  the  parties  may  refuse  to  comply,  not  even  upon  payment  of  a 
promised  sum  as  a  penalty.' 

Draft 

Section  31.  The  expenses  of  the  arbitral  proceedings 
are  borne  half  and  half  by  each  party,  without  prejudice  to 
the  decision  of  the  arbitral  tribunal  regarding  the  indemnity 
that  one  or  the  other  of  the  parties  nay  be  condenmed  to 
pay.' 

Section  32.  The  arbitral  award,  when  duly  pro- 
nounced, may  be  contested  and  annulled: 

1.  If  the  compromi*  was  not  legally  concluded  (Sections 
2,  3,  4,  7,  8).  This  ground  may  not  be  invoked,  if  the  ap- 
pellant took  part  in  the  procedure  before  the  arbitral  tri- 
bunal and  did  not  contend  that  the  compromit  was  invalid. 

2.  If  the  compromit,  although  legally  concluded,  has 
subsequently  been  annulled: 

(a)  By  convention  of  parties  intervening  before  the 
award  is  pronounced ; 

(6)  Because  it  has  not  been  possible  to  form  the  arbi- 
tral tribunal  or  because  a  legally  formed  tribunal  has  subse- 
quently been  dissolved  (Sections  6-8,  11,  25). 


•  Dalloc,  ch.  XI,  nos.  1133  tt  $eq.;  Bouvier,  under  the  word  Arbitrator,  no. 
4;  La  comtfioit  mixta,  p.  94.  As  to  official  copies  of  the  award,  see  Treaty  of 
Washington,  Articles  7,  10,  3S. 

'See  remarks  on  g|  39  »t  ttq.;  Bluntschli,  %  494.  Treatie$  and  Con- 
ventioni,  notes,  p.  964:  "The  decision  of  an  international  tribunal  within  the 
•cope  of  its  authority,  is  conclusive  and  final,  and  is  not  reexaminable";  Ger- 
man draft,  I  794. 

•Calvo,  I,  p.  796;  Treaty  of  Washington,  Articles  8,  25,  36,  41.  See  also 
Digest,  D»  rtceptU,  4,  8,  39;  Dallon,  ch.  XI,  no.  1061. 


\-l 


284    Retolutiont  of  the  Irutitute  of  Intermtional  Law 

(c)  Because  the  period  stipulated  for  rendering  the 
award  has  expired  before  the  award  is  rendered  (Section  24). 

3.  If  the  arbitral  tribunal  has  not  deliberated  and 
reached  its  decision  with  all  its  members  present  and  voting 
(Sections  14,  25). 

4.  If  the  compromit  prescribes  »  statement  of  reasons 
and  the  award  is  rendered  without  reasons  (Section  28). 

6.  If  the  arbitral  tribunal  has  rendered  its  decision  with- 
out hearing  the  appellant  (Section  16). 

On  the  same  footing  as  the  case  of  refusal  to  hear  the 
appellant  is  that  where  the  perso:.  who  has  acted  as  his  rep- 
resentative has  not  been  empowered  by  him,  either  expressly 
or  tacitly,  and  where  this  person's  action  has  not  been  rati- 
fied, either  expressly  or  tacitly,  by  the  appellant. 

6.  If  the  arbitral  tribunal  has  gone  beyond  the  limits  of 
its  competence  as  laid  down  in  the  compromis  (Sections  3, 
4,  18). 

7.  If  the  arbitral  tribunal  has,  in  its  decision,  granted 
the  adverse  party  more  than  it  demanded. 

8.  If  the  rules  of  procedure  or  the  principles  of  law  ex- 
preitly  preicribed,  in  the  compromit  or  in  a  subsequent  con- 
vention of  the  contracting  parties,  for  the  observance  of  the 
arbitral  tribunal,  or  the  principles  of  procedure  established 
by  the  tribunal  itself  and  notified  to  the  parties  have  evi- 
dently been  disregarded  or  violated. 

9.  If  the  arbitral  award  orders  an  act  generally  recog- 
nized as  immoral  and  prohibited. 

10.  If,  without  the  knowledge  of  the  appellant  and  be- 
fore the  rendering  of  the  award,  one  of  the  arbitrators  has 
received  from  the  adverse  party  a  favor  or  the  promise  of 
a  favor. 

11.  If  it  is  proved  that  the  arbitral  tribunal  has  been  de- 
ceived by  the  adverse  party ;  for  example,  by  means  of  forged 
or  altered  documents,  or  of  suborned  witnesses. 

Section  33.  Appeal  must  be  taken  before  the  tribunal 
or  arbitral  tribunal  designated  or  appointed  for  this  pur- 
pose in  the  compromis  or  in  a  subsequent  convention  between 
the  parties.  In  the  absence  of  such  a  designation  or  ap- 
pointment, or  if  it  is  impossible  legally  to  form  the  arbitral 
tribunal  designated,  or  if  the  arbitral  tribunal  is  legally 
formed  and  dissolved,  or  if  the  tribunal  designated  refuses  to 
decide,  the  appeal  must  be  taken  before  the  supreme  court, 
of  the  State  or  territory  in  which  the  arbitral  tribunal  has 
held  its  sittings  (Section  12). 

Section  34.    The   appeal   is   taken   within   a  period   of 


Appendix  285 

ninety  days  from  the  date  of  notification  of  the  arbitral 
award  to  the  empowered  agent  of  the  appellant  (Section  29). 
A  written  declaration  that  the  arbitral  award  is  unfair 
to  the  appellant,  together  with  the  deposit  of  the  sum  of  one 
thousand  francs  as  a  penalty,  is  sufficient  to  enter  an  appeal. 
Upon  the  expiration  of  the  period  above  mentioned,  an  ap- 
peal IS  not  admissible  unless  the  appellant  proves  that 
through  no  fault  of  his  own  he  did  not  become  aware  until 
later  of  the  grounds  for  his  appeal. 

The  appeal  is  considered  as  abandoned  and  the  penalty  in- 
curred, unless  within  a  further  period  of  ninety  days,  begin- 
""'f.7'*'?  ^^'^  ♦^»*^  "'  expiration  of  the  former  period,  a 
justificative  memorandum,  specifying  and  detailing  the 
grounds  on  which  the  arbitral  award  is  contested,  is  pre- 
sented to  the  tribunal.  The  grounds  set  forth  mav  not  be 
completed  upon  the  expiration  of  the  period  of  justification. 

Appeal  may  not  be  entered  or  justified  except  by  duly 
authorized  representatives.  r      j        j 

The  appeal  and  the  justificative  memorandum  thereon 
must  be  communicated  to  the  adverse  party,  who  must  reply 
in  writing  withm  a  period  of  ninety  days  from  the  co.u.nuni. 
cation  of  the  justificative  memorandum.  Facts  stated  in  this 
memorandum,  which  are  not  clearly  contested  by  the  adverse 
party,  are  considered  to  be  admitted. 

The  tribunal  may  hear  the  representatives  of  the  parties 
and  require  the  submission  of  proofs. 

The  tribunal  passes  judgment  solely  on  the  grounds  for 
appeal  as  set  forth  in  the  justificative  memorandum.  If  it 
finds  them  weU  founded,  it  annuls  the  arbitral  judgment.  If 
the  arbitral  award  contains  decisions,  independent  of  each 
other,  on  several  points  in  dispute,  only  the  decisions  which 
are  effectively  contested  are  annulled. 

is  inc  ri^*"''"'"*'  ''^•'^*'*^  ^^^  appeal,  the  penalty  deposited 

The  costs  of  these  proceedings  arc  borne  by  the  losing 

The  decision  of  the  tribunal  is  final. 

The  dispute  can  not,  without  the  consent  of  the  parties, 
be  referred  for  further  action  to  the  arbitral  tribunal  that 
passed  upon  it  or  to  any  other. 

We  have  pointed  out  in  the  preliminary  remarks  that  the  great 
jurists  of  Rome  deduced  from  the  nature  of  the  compromit  and  of 
the  arbitral  judgment  the  just  consequences,  which  modern  juris- 


286    Betolutiotu  of  the  Itutitute  of  International  Law 

prudence  and  practice  have  frequently  altered.  If  the  force  of  the 
arbitral  award  consists  in  the  fact  that  by  virtue  of  the  agreement 
of  the  partiee  it  takei  the  place  of  a  judicial  decitiort,  it  follows 
that  it  can  be  considered  ineffective  only  in  the  following  cases: 
when  the  parties  have  not  consented ;  when  there  has  not  been  a  real 
arbitral  tribunal;  when  the  award  has  been  rendered  contrary  to 
the  express  or  tacit  agreement  of  the  parties;  finally,  when  the 
maintenance  of  the  award  would  appear  to  be  an  evident  violation 
of  all  law  and  morality.  The  grounds  for  r.ppeal  in  Section  32, 
1-11,  are  therefore  to  be  found  in  substance  in  the  sources  of  the 
Roman  law,  particularly  under  Nos.  9,  10,  11.* 

More  than  that.  The  Roman  law  allows  the  arbitral  award  a 
direct  effect  only  in  exceptional  cases.  Justinian  was  the  first  to 
recognize  that  an  award,  expressly  or  tacitly  accepted  by  both 
sides,  has  an  effect  similar  to  that  of  a  judgment.'  It  foUows  that 
in  Roman  law  appeal  regularly  takes  the  following  form:  payment 
of  the  sum  promised  in  case  of  non-compliance  with  the  award  is 
refused,  and  the  judge  passes  upon  the  merits  of  such  refusal. 
But  in  no  case  is  he  authorized  to  examine  the  arbitral  award,  to 
ascertain  its  material  correctness  or  justice.'  Also  there  is  neither 
appeal  from  nor  other  process  of  law  against  arbitral  awards.* 

These  very  simple  principles  have  been  falsified  in  various  ways 
by  the  jurisprudence  and  legislation  of  the  Middle  Ages.  They 
were  right  in  departing  from  the  Roman  law  in  recognizing  that 
the  arbitral  award  has  a  direct  effect  like  that  of  a  judgment. 
But  they  went  further.  They  extended,  so  as  to  include  arbitral 
awards,  the  system  of  appeals  from  judicial  decisions.  They  al- 
lowed appeal,  as  if  it  were  a  question  of  a  judgment  rendered  by 
judges  of  first  instance,  and  that  either  absolutely,  provided  ap- 

•  Digest,  De  rictpli*,  4,  8,  3,  pr.;  4,  8,  21,  7;  4,  8,  31;  Code,  idem,  2,  SS(56),  3. 
•Code,  D«  rec«pti$,  2,  55(56),  4-5.    Cf.  Digest,  D»  reetptU,  4,  8,  l-2i  Paulus, 

Rtctptae  Btnttntiat,  Lib.  V,  Tit.  Va,  {  1;  Code,  Dt  rte«pti$,  3,  55(56),  I;  De 
iurudictiont  omnium  iudicum,  3,  13,  3. 

*  Digest,  De  reeeptu,  4,  8,  27,  2:  "  Stari  autem  debet  eententiae  arbitri,  quam 
de  ea  re  dixerit,  live  aequa  live  iniqva  lit:  et  libi  imputtt  ftit  eompromMit," 
Digest,  Pro  locio,  17,  2,  76. 

'Code,  De  receptii,  3,  55(56),  1:  "Ex  lententia  arbitri  ex  eompromiiio  iure 
perfecto  aditi  apptllari  non  poiie  laepe  reicriptum  eit."  It  Is  only  by  way  of 
comparison  that  the  Digest,  De  receptii,  4,  8,  33,  14,  spealcs  of  "  quaedam 
appellandi  rpedei." 


Appendix  287 

peal  were  not  expressly  excluded  by  the  compromi,,  or  at  least  in 
■o  far  as  the  compromi,  reserved  the  right  of  appeal.  In  addition, 
action  to  annul  or  a  simUar  remedy  was  recognized  for  certain 
caser  of  flagrant  illegality.  And  even  in  cases  where  appeal  was 
prohibited,  it  was  permitted  for  the  purpose  of  contesting  an 
award  because  of  gross  injustice,  thus  confusing  the  arbiter  with 
the  arbitrator.' 

It  is  only  in  recent  years  that  German  jurisprudence  and  laws 
of  procedure  (for  example,  those  of  Geneva,  Bavaria,  Germany) 
have  returned  to  correct  rules  by  excluding  appeal  in  principle  and 
restricting  annulment.' 

T''*  'f«=t''  *hich  »e  have  just  pointed  out  were  naturally  calcu- 
lated to  mfluence  the  theory  of  international  arbitration.  As  no 
method  was  seen  here  of  obtaining  a  subsequent  examination  and 
a  decision  by  the  judge,  it  was  bound  to  appear  more  equitable  to 
refuse  to  recognize  the  force  of  an  unjust  award.  There  is  a  great 
divergence  of  opinions  in  this  matter.  The  ancient  masters  ex- 
eluded  appeal  or  allowed  it  only  on  a  few  indisputably  just 
grounds;  but  Daries  in  his  Observatione,  juri,  nationalu,  socialU 
'*9^**um,  permits  refusal  to  obey  an  unjust  award.  Vattel,  II, 
18.  Section  329,"  is  of  the  same  opinion,  at  least  in  case  of  manifest 
injustice  or  absurdity.  Likewise  Neumann  «  in  case  of  "  dolu»  U- 
Itcita  vel  inhoneita  praecepta,  aliave  nullita,  admitsa."  Many  of 
the  most  recent  writers  admit  these  broad  categories.  They  de- 
clare the  award  void:  in  case  of  fraud  or  evident  partiality  of  the 
arbitrator  fraud  on  the  part  of  the  adverse  party,  incomplete 
hearing  of  the  parties,  a  decision  whose  content  could  not  legally 
give  rise  to  a  convention,  material  falsification,  an  error  caused 
by  the  parties  or  the  arbitrator,  flagrant  violation  of  the  funda- 

III  nt'v^"""?'?  .T'""-    ^'•'  '"  """P'*'  ^"'''♦'  ^™«  P«W'>.  Book 

.1*1       '  BouWer,  under  the  word  Av,ard,  nos.  3,  9,  10. 
See  the  draft  of  German  procedure,  U  795-797 

Jena,  1751,  vol.  li,  Observ.,  13,  IS  13  tt  $tq. 
•Vol.  il,  p.  305,  ed.  of  M.  Pradier-Fodirt 
•  Loe.  cit.,  f  21. 


988    Retolutioru  of  the  Irutitute  of  International  Law 

menUl  principles  of  procedure,  and,  finally,  in  caae  of  an  award 
contrary  to  the  dictates  of  international  law  and  of  humanity.* 

The  first  of  the  grounds  for  annulment  given  by  Mr.  Pierantoni 
is  the  "  proved  corruption  of  one  of  the  arbiters,  if  it  changes  the 
judgment  that  otherwise  would  have-  been  delivered."  This  is  too 
restrictive.  As  a  matter  of  fact,  the  influence  that  the  corruption 
of  even  a  single  arbiter  may  exert  is  not  ascertainable.  The 
fourth  ground  pointed  out  by  Mr.  Pierantoni,  after  Messrs. 
Heffter  and  Calvo — "  if  the  arbitral  award  has  decreed  something 
that  is  not  fitted  for  being  the  subject  of  agreement " — is,  on  the 
other  hand,  a  little  too  general,  the  more  so  since  the  systems  of 
civil  law  vary  on  this  point.  We  believe  that  the  category  under 
No.  9  of  Section  82  is  sufllcient.  It  corresponds  in  substance  to 
that  formulated  by  Mr.  Bluntschli  in  the  following  words :  "  incom- 
patibility between  the  award  and  the  dictates  of  international  law 
or  of  the  law  of  man." 

It  is  necessary  to  specify  and  to  limit  as  much  as  possible  the 
causes  of  annulment,  if  we  are  to  attempt  to  remove  them  from  the 
embryonic  state  of  scruples  of  conscience  which  can  not  be  con- 
trolled, in  which  they  now  are,  and  to  raise  them  to  the  plane  of 
legal  grounds,  which  permit  the  contesting  of  a  judgment  by  regu- 
lar process. 

If  this  attempt  succeeds,  the  force  that  the  decision  of  inter- 
national arbitral  tribunals  should  claim  to  have  as  international 
judicial  decisions  will  be  guaranteed  so  far  as  the  present  state 
of  international  law  admits.  But  to  attain  this  end,  the  crea- 
tion of  a  higher  court  is  necessary. 

It  is  to  this  higher  court  and  the  procedure  which  should  be 
followed  in  it  that  Sections  33  and  34  refer.  Doubtless  it  would 
be  best  to  have  an  international  tribunal  either  permanent  or  con- 
stituted ad  hoc  for  the  particular  case.  The  objections  that  can 
be  urged  against  an  institution  of  this  nature  have  no  longer  any 
great  weight,  since  a  material  decision  of  the  dispute  is  not  asked 
for,  but  merely  a  judgment  on  the  merits  of  the  grounds,  which 

■  Heffter,  I  109;  Bluntschli,  |  495;  R.  von  Mohl,  Bneyclopiidie  dtr  ataatt- 
nnntmekaft,  3d  ed.,  |  450  (the  strictest);  Berner,  in  Bluntschli  and  Brater's 
8taatiM)drttrbMck,  VI,  p.  108;  Bulmerincq,  loe.  cit.,  p.  417;  Calvo,  I,  pp.  T96,  797; 
PhUlimore,  III,  p.  5;  Twiss,  Tkt  Law  of  Nationt,   War,  f  5;  Pierantoni,  Uli 

arbitrati  intfrnaMnali,  pp.  91-97. 


Appendix  289 

h.ve  been  strictly  defined,  for  contesting  the  award.  If  the  paHies 
are  unable  to  agree  upon  the  formation  of  such  an  international 
court  or  upon  the  formation  of  a  new  arbitral  tribunal  to  be  re- 
stncted  to  the  question  of  appeal,  or,  finally,  upon  the  selection  to 
this  end  of  some  existing  tribunal,  there  will  then  be  no  impropriety 
ui  entrusting  the  decision  to  the  supreme  court  of  the  State  or 
territory  (for  example,  Italy)  in  which  the  arbitral  tribunal  has 
been  sitting.  The  fact  cannot  be  overlooked  that  the  natural  im- 
portance of  the  seat  of  the  arbitral  tribunal  would  thereby  be  con- 
siderably  increased.  But  the  parties  are  free  to  choose  this  seat 
at  their  pleasure,  as  likewise  to  entrust  to  another  judicial  court 
the  decision  in  question.  Perhaps  it  may  be  objected  that  all 
supreme  courts  are  not  fitted  to  decide  international  questions.  We 
answer  this  objection,  first,  by  the  foregoing  observation,  and 
furthermore  by  the  statement  that  the  only  question  to  be  decided— 
to  wit:  whether  the  grounds  formulated  actually  exist— will  very 
seldom  give  occasion  to  take  up  questions  of  international  law  and 
of  puWic  law.  Finally,  it  may  be  admitted  without  any  hesitation 
that  the  general  interests  of  nations  in  having  correct  interna- 
tional awards  rendered  will  be  suflicient  to  persuade  the  chosen  or 
competent  national  tribunal  not  to  refuse  to  undertake  the  decision 
requested. 

It  is  not  necessary  to  give  in  detail  the  reasons  for  the  funda- 
mental feature,  of  the  procedure  of  appeal  set  forth  in  Section  34. 


SUPPLEMENTARY     OBSERVATIONS     BY     MR      GOLD- 
SCHMIDT  RELATIVE  TO  THE  REGULATIONS 
FOR  INTERNA'^IONAL  TRIBUNALS' 

The  draft  regulations  for  international  arbitral  tribunals, 
which  last  year  formed  the  subject  of  the  deliberations  of  the  Insti- 
tute,  were  the  work  of  the  reporter  alone. 

He  considered  it  his  duty  to  make  his  draft  as  precise  and  as 
complete  as  possible,  in  order  to  spare  both  the  committee  and  the 

•Bertw  *.  droit  international  et  de  Ugitlation  compari,.  vol.  T,  p.  483. 


i  ■  V 


240    Retolutioiu  of  the  Institute  of  International  Law 

Inatitute  the  trouble  involred  in  the  matter  of  det«ilt.  He  thought 
that  the  regulation!  would  be  the  more  useful  in  that  they  wouM 
contain  legal  principles  clearly  expressed  and  susceptible  of  direct 
application.  Given  this  plan,  the  responsibility  of  which  rests  with 
the  reporter,  it  was  impossible  not  to  develop  the  draft  considerably. 
It  was  to  be  expected  at  the  same  time  that  the  Institute  would 
eliminate,  without  disadvantage,  certain  provisions  somewhat 
theoretical  in  their  scope,  tacitly  recognizing  the  principles  on 
which  they  were  based,  and  that  many  conceptions  would  be  more 
briefly  formulated. 

In  many  a  doubtful  question  it  was  the  wish  of  the  reporter 
to  deviate  as  slightly  as  possible  from  the  recognized  law,  leaving; 
it  for  the  Institute  to  take  the  initiative  in  the  matter  of  the  most 
important  innovations. 

The  modified  draft,  in  the  form  which  it  has  assumed  «s  a  re- 
sult of  the  deliberations  of  the  Institute  and  of  the  drafting  com- 
mittee, is  submitted,  for  final  acceptance,  at  this  year's  meeting. 
The  reporter  recommends  its  acceptance.  Nevertheless,  not  hav- 
ing been  able  to  take  part  in  the  labors  of  the  drafting  committee, 
he  deems  it  his  duty  to  make  a  few  remarks  concerning  various  spe- 
cial points  and  certain  questions  of  principle. 

He  desires  to  state  in  the  first  place  that  regulations  intended 
for  international  debates  may  advantageously  contain  rules  whose 
authority  is  undisputed  according  to  the  civil  law  or  the  procedure 
of  certain  States,  indeed  of  a  great  number  of  States,  for  this  fact 
alone  is  insufficient  to  make  them  applicable  to  international  rela- 
tions. 

1.  Section  4  of  the  original  draft,  governing  the  competence 
of  the  arbitral  tribunal,  has  been  stricken  out,  the  grounds  for  ap- 
peal being  enumerated  further  on.  Article  24  of  the  present  draft, 
which  takes  the  place  of  Section  32  of  the  original  draft,  provide!) 
simply  that  the  award  is  null  in  case  of  etceu  of  power.  But  when 
is  there  excess  of  power?  This  is  a  question  that  may  involve  much 
doubt.  It  would  be  desirable  to  restore  Section  4  in  order  to  com- 
plete the  said  article,  the  more  so  since  in  the  present  Article  l-t 
the  principle  laid  down  in  the  original  Section  18 — namely,  that 
exception  on  the  grounds  of  incompetence  must  be  applied  m  limine 
litit — has  been  eliminated. 


Appendix  241 

2.  The  preient  tenor  of  Article  18  appeari  to  be  too  reitric- 
tive.  The  expres.ion  "  law  of  nationi,-  which  the  drafting  com- 
mittee hat  lubitituted  for  "  principle!  of  law  which  are  applicable 
by  virtue  of  the  rules  of  international  law"  (Section  22  of  the 
original  draft),  i.  not  broad  enough.  It  does  not  include  all  the 
proviiioni  applicable  to  positive  law.  At  any  rate,  the  exprcMion 
"  principle,  of  international  law,"  a<  wai  proposed  during  the  dis- 
cussion, should  be  preferred.  It  is  these  principles,  as  a  matter  of 
fact,  that  establish  which  of  several  national  laws  should  be  ap- 
plied in  questions  not  governed  by  international  law;  for  example, 
whether  English  or  French  public  law,  Spanish  or  German  civil 
law. 

8.  The  Institute  has  stricken  out  as  superfluous  Section  26  of 
the  original  draft.  However,  the  question  which  was  settled 
thereby  is  not  beyond  the  possibility  of  dispute,  as  the  reporter  had 
an  opportunity  of  discovering  in  his  capacity  as  counselor  to  His 
Majesty  the  Emperor  of  Germany  in  the  San  Juan  case.  The 
restoration  of  the  said  article  would  therefore  bo  justified 

4.  Section  29  of  the  original  draft  has  be,  adopted  by  the 
Institute  with  the  following  addition,  proposed  by  Mr.  Mancini,  to 
paragraph  2:  "provided  the  periods  mentioned  in  the  compromit 
have  not  expired."  The  omission  of  these  words  was  doubtless  an 
oversight  on  the  part  of  the  drafting  committee. 

«.  SacTioN  80  of  the  original  draft  contained  the  modem  rule 
pertaining  to  the  force  of  arbitral  awards.  This  rule  is  not  imfeed 
contested  to-day.  Nevertheless,  in  view  of  its  importance,  it  is 
proper  to  recognize  it  expressly. 

6.  Section  7  of  the  original  draft  drew  a  distinction  between 
grounds  for  urging  incapacity  and  grounds  for  challenging,  and 
enumerated  both.  The  Institute  has  stricken  out  the  dl.tLtion 
and  the  enumeration.    Article  4  is  worded  as  follows: 

Sovereips   and  heads  of  Governments  without  any  re- 
trictu,„   ,hall   be  eligible  to   be  named   international  ^arbi^ 
trators,  and  also  all  persons  who  have  the  capacity  to  exer- 
cise the  functions  of  arbitrator  under  the  common  law  of 
their  country. 

Nevertheless  Article  5  draws  a  distinction,  as  did  Section  8  of 
the  original  draft,  between  incapacity  and  valid  exception.    One  of 


948    Reiolutiotu  of  the  Itutitute  of  International  Law 

two  thiBgi  thould  be  done:  cither  thia  diitinction  should  not  ap- 
pear b  Article  5,  or  the  original  draft  ihould  be  reitored,  fith  the 
additional  clause  concerning  lovereignt,  etc.  Although  he  wai 
alone  in  hia  opinion  during  the  first  deliberation,  the  reporter  per- 
sists in  his  recommendation  of  a  detailed  enumeration  of  the 
grounds  on  which  incapacity  may  be  urged  and  exception  taken. 
Very  few  national  laws  contain  dear,  adequate,  and  undisputed 
provisions  on  this  subject.  In  nearly  all  countries  the  doctrine  and 
practice  are  uncertain. 

On  this  subject  especially  there  should  be  common  and  un- 
equivocal rules;  otherwise  the  very  institution  of  the  arbitral  tri- 
bunal would  be  shaken  from  the  start.  In  the  matter  of  the  present 
draft,  the  question  as  to  what  national  law  shall  determine  the  ca- 
pacity of  each  arbitrator  will  present  itself  at  the  very  outset  and 
will  furnish  plenty  of  material  for  sharp  practice  and  for  delays  of 
every  kind. 

7.  The  principal  change  mad'.-  in  the  original  draft  (Sections 
fl2-84)  is  contained  in  Article  24.  Paragraph  2  of  this  article  hus 
taken  the  place  of  Sections  82  and  84,  which  governed  appeal.  By 
virtue  of  this  paragraph,  it  is  the  compromit  that  decides.  It  may 
be  granted  unreservedly  that  many  practical  objections  can  be 
raised  to  the  radical  and  considerable  innovation  in  the  original 
draft.  Nevertheless,  it  is  to  be  regretted  that  this  attempt  to  raise 
the  international  arbitral  tribunal  to  the  level  of  a  truly  legal  in- 
stitution has  been  absolutely  discarded.  See  the  groundt  [for  ap- 
peal from  the  award]  in  Sections  32-84,  and  the  Preliminary  He- 
marki.  It  may  be  also  that  this  reference  to  the  potiMe  content 
of  the  eompromis  is  not  entirely  in  place  in  subsidiary  regulations. 
This  poitiblr  content  can  not  be  required.  If  the  compromit  con- 
tains nothing  on  this  subject,  we  must  fall  buck  to  the  former  state 
of  things ;  that  is  to  say,  every  State  will  consider  itself  bound  only 
to  the  extent  that  it  desires,  for  there  will  seldom  be  any  lack  of 
pretexts  for  contending  that  the  award  is  ineffective. 

The  first  paragraph  of  Article  24  lends  itself  also  to  criticism. 
The  vague  and  general  categories  of  a  "  nuU  compromit "  and  of 
"  ejtceti  of  power  "  are  there  substituted  for  the  grounds  for  aj)- 
peal  specified  in  Section  31  of  the  original  draft.  That  would  be 
appropriate   in    a    national    law,   possessing   a   definite   historical 


Appendix  j^g 

foundation,  an  unch«.ging  theory  .„d  practice.  But  thcM  cate- 
gory, can  not  .ufflce  in  the  don«i„  of  international  law,  in  which 
'Lli  **7  """•  "'  ''"  '"•'  •  d'fnninative  juri.pn.dence  are 

rc^sitrcr/tir" "'  ^'"'  ^^  '^"^  ^'  *»"  ^^'^-^'y  -' 

limireS*  '  tL"I'*°I!."  ^"  ''"^^*'^"  "  '^^  ")  •?!-"  to  be  too 
limited.     The  proved  corruption  of  an  arbitrator  .hould  be  .uf- 

.h^W  r"«  f  f  '"  ""*  '"""*""'  ^'''^  '"•J°"»^-  An  error 
.hould  be  .ufflcent  aUo.  even  though  it  i,  cau«>d  b,  fal«.  witn...... 

of  further  examination.  •«oje« 


MR.  PAUL  FAUCHILLE  3  PROJECT  OP  A  CONVENTION 
RESPECTING  AERIAL  LAW ' 

Pait  L— AiKCBAn  IN  Tim*  or  Pkacs 

CHAPTxa  I.— Aircraft 

Aa-ncLX  1.  Aircraft  are  public  and  private.  Public  aircraft 
are  military  or  civil, 

Military  aircraft  are  thow  a..igned  by  the  State  to  military 
Mrvice  and  placed  under  the  command  of  an  army  or  navy  officer 
in  uniform.  Every  military  aircraft  must  bear  the  di.tinctive  .ig„ 
of  itf  character,  attached  in  a  visible  manner  to  it.  covering 

Civil  public  aircraft  are  those  which  are  assigned  to  dvU  service 
of  the  State  and  which  are  under  the  orders  of  a  duly  commis- 
■loned  official.  They  shall  carry  the  sign  of  their  character  in  a 
prominent  place. 

Aeticle  2.  Every  aircraft  must  have  a  nationality.  The  na- 
tionaUty  of  public  aircraft  is  that  of  the  State  to  the  service  of 
which  they  are  assigned.  That  of  private  aircraft  is  determined 
by  the  nationality  of  their  owner. 

'A»»^(r*.  »oL  84,  p.  105.  For  the  reguUtions  .dopted  by  the  lutltute. 
«*  9nt«.  p.  171.  ^ 


si 


?r 


244    RetolutWM  of  the  Itutitute  of  International  Law 

AsTicuc  8.  Every  aircraft  must  be  regiateied  on  a  list  drawn 
up  by  the  public  authority  of  the  State  to  which  it  belongs  or  of 
the  country  where  its  owner  resides. 

The  registration  shall  show  the  name  and  kind  of  the  aircraft, 
and  the  name  and  address  of  its  owner. 

The  legislation  of  each  State  determines  the  places  where  regis- 
tration should  be  made  and  the  authority  which  is  charged  there- 
with. 

The  different  States  shall  exchange  the  lists  of  the  aircraft  that 
have  been  enrolled. 

Aeticle  4.  Every  aircraft  should  have,  fastened  to  its  car, 
a  plate  of  identification  mentioning  the  name  and  residence  of  the 
owner,  the  name  of  the  builder  and  its  factory  number. 

It  shall  also  bear  upon  its  covering,  plainly  marked,  (1)  a  let- 
ter corresponding  to  the  country  where  it  has  been  enrolled,  (2)  a 
letter  corresponding  to  the  district  where  it  has  been  registered, 
(3)  a  number  reproducing  the  enrolment  number  on  the  list. 

If  an  aircraft  has  not  the  nationality  of  the  country  where  it 
has  been  enrolled,  it  shall  also  carry  the  letter  of  the  country  of  its 
nationality. 

The  national  flag  will  indicate  the  public  character  of  aircraft. 
In  the  case  of  military  aircraft  this  flag  will  take  the  shape  of  a 
pennant. 

Chapter  II. — The  Circulation  of  Aircraft 


Abticle  5.  In  order  to  be  admitted  to  circulate,  every  private 
aircraft  should  have  a  circulation  permit  showing  its  nationality 
and  the  essential  characteristics  of  the  apparatus. 

In  every  State  domestic  regulations  shall  determine  the  condi- 
tions upon  which  the  permit  for  aerial  circulation  shall  be  delivered, 
after  a  test  of  navigability. 

The  permit  delivered  in  one  of  the  contracting  States  shall  be 
valid  in  the  other  States. 

At  all  times  the  competent  authorities  shall  have  the  right  to 
visit  aircraft  that  are  permitted  to  circulate.  The  circulation  per- 
mit shall  be  withdrawn  from  aircraft  that  cease  to  fulfil  the  re- 
quired conditions. 


Appendix  243 

A«TicLE  6.  Every  pilot  of  a  private  aircraft  should  be  fur- 
nished With  a  certificate  delivered  after  examination  by  a  competent 
authority.  ^ 

There  shall  be  special  certificates  for  free  balloons,  for  diriiri- 
ble  balloons  and  for  flying  machines. 

The  certificate  delivered  for  one  class  of  aircraft  cannot  serve 
for  the  operation  of  an  apparatus  belonging  to  another  class.  The 
different  certificates  may  be  delivered  to  the  same  pilot 

The  conditions  required  to  obtain  the  certificate  of  proficiency 

Jo".  1^  T"'  '^'  '•'"''"'"«■  ^^>  *''"*  *»•«  »««  ^  -er  18  years^ 
(2)  good  si^t;  (3)  that  the  applicant  has  not  been  convicted  of 
crime  or  misdemeanor. 

^.7Y^^T^^''"'!  J""""^  '"  °"'  °'  ^^^  contracting  countries 
have  full  force  and  effect  in  the  other  countries. 

An  alien,  as  well  as  a  national,  may  obtain  the  certificate  of 
proficiency. 

AmxicLi:  7.  Aerial  circulation  is  free.  Nevertheless  the  under- 
lymg  States  retain  the  rights  necessary  for  their  self-preservation, 
that  IS,  for  their  own  security  and  that  of  the  persons  and  property 
of  their  inhabitants.  *^    *^  ^ 

A.T.CI.E  8.  To  safeguard  their  right  of  self-preservation. 
States  may  dose  certain  regions  of  the  atmosphere  to  circulation. 
They  especially  have  the  right  to  forbid  circulation  above  or  in 
the  vicinity  of  fortified  works. 

K  l^ll!  P"*»  °'  *""*°>'y  "bove  which  circulation  is  prohibited 
ahall  be  marked  off  by  signs  visible  to  aeronauts. 

A.T.CLE  9.  The  circulation  of  aircraft  is  entirely  free  above 
the  open  sea  and  unoccupied  territory. 

frontiers  of  their  country  with  the  authorization  of  the  State  above 
which  they  wish  to  circulate  or  in  whose  territory  they  propose  to 

tr^nlnll!"  "'    '"   '"*""'»*'°"*>    circulation    it   is   forbidden    to 
transport,  on  private  a-rcraft,  explosives,  arms  and  munitions  of 

Dhoiocrr"™  P;,"'*'''';"'"  "PP'i"  '•"  principle  to  apparatus  for 
photography  or  rad.o-telegraphy ,  this  prohibition  may  be  removed 


! 


i 


246    Resolutions  of  the  Institute  of  International  Law 

Abticle  12.  Aircraft  are  likewise  forbidden  to  carry  merchan- 
di«e  that  ii  prohibited  or  subject  to  monopoly,  or  even,  within  cer- 
tain limits  to  be  determined,  merchandise  liable  to  high  customs 
duties  in  small  bulk. 

Abticu:  18.  Acts  committed  on  public  and  private  aircraft  in 
whatever  part  of  the  air  they  may  be  are  cognizable  by  the  courts 
of  the  State  to  which  the  aircraft  belong  and  are  judged  accord- 
ing to  the  laws  of  that  State. 

Nevertheless,  acts  affecting  the  right  of  self-preservation  of  the 
subjacent  State  or  causing  damage  to  its  territory  or  the  goods 
or  persons  of  its  inhabitants  should  be  judged  by  the  courts  and 
according  to  the  laws  of  the  territorial  State. 

AiTtcLE  14.  In  case  of  a  collision  between  aircraft  of  the  same 
nationality  in  any  part  of  the  atmosphere,  the  courts  and  laws 
that  are  competent  to  consider  and  fix  their  respective  respon- 
sibility are  those  of  the  country  of  these  aircraft  to  the  exclusion 
of  those  of  the  subjacent  State.  When  the  two  aircraft  are  of 
different  nationality,  in  order  to  decide  which  of  t^e  two  national 
legislations  is  applicable,  the  same  rules  shall  be  followed  as  in  the 
case  of  collision  on  the  high  sea  of  two  vessels  of  different  nation- 
ality. 

Akticle  16.  International  regulations,  annexed  to  the  present 
convention,  which  shall  come  into  effect  at  the  same  time  as  the 
convention  and  remain  in  force  until  it  has  been  modified  by  com- 
mon agreement,  shall  fix  the  particular  prescriptions  with  the  view 
of  preventing  collisions  and  facilitating  communication  between 
aircraft.  In  making  these  prescriptions  the  practice  followed  in 
maritime  navigation  shall  be  the  guide. 

Chaptek  III. — The  Departure  and  Landing  of  Aircraft 

Akticle  16.  Every  private  aircraft  should  have  on  board  and 
produce  whenever  requested:  (1)  the  circulation  permit;  (2)  the 
proficiency  certificate  of  the  pilot;  (3)  if  it  carries  merchandise,  a 
manifest  in  accordance  with  the  following  article;  (4)  a  log-book 
in  which  are  recorded  the  names  of  the  pilot  and  crew,  the  names, 
vocations  and  domiciles  of  the  passengers,  and  the  interesting 
events  of  the  voyage. 


Appendix  247 

The  loif-book  done  i.  required  of  public  aircraft. 
P.rt '^th"t  »;rc^:lr*^  '  ^"^'^  "^-^  '^""'*  ^'-^  <^- 

a  m^iJIlV"'"  *"!!?'  ""■"*'*  ''''^•="  '^*'>  merchandise  niu.t  carry 
a  manifest  prepared  at  the  place  of  lading  and  vi,  J  by  Ihe 
competent  fiscal  authority.  ^  *"* 

ti..'^^J°^i^'f  '«'°*'  °'  *^^  *«""y  "h*"  i»  all  cases  have 
the  nght  of  nsitrng  aircraft  at  the  time  of  their  departu" 

A.T,c«  18     Every  aircraft,  when   it  intends   to  land    -hall 

AaxicL.  19    Any  State  may  forbid  the  landing  of  aircraft  in 
certam  parts  of  .ts  territory,  mark^  off  by  signs^visible  to  ier" 

^^Aircraft  transporting  merchandise  can  land  only  at  designated 

A.TICLZ  20.    States  have  the  right  to  forbid  the  landing  upon 
the.r  territory  of  aircraft  coming  from  a  country  wheHise^e 
ex«U.  on  the  same  conditions  a.  for  land  vehicles  and  sWp. 
.flof  T  M  ^'-    ^'^^''^^y  *"-  '^-  lading  of  an  aircraft  the 

place.  The  latter,  after  verification  of  the  identity  of  the  air- 
craft, examination  of  the  cargo  and  fulfilment  of  the  formalities 
pre-cnbed  by  the  revenue  laws,  shall  place  their  vis^  on  tte  lo^ 
f^Tt     J^  "'"*'*,^*"y|"«  "-••chandise  must  produce  its  mani: 

th.  ™?  ^r  .  T  '~'"*  "'^""^'^  ™"'°™  *°  the  provisions  of 
the  customs  laws  of  the  country  where  they  land. 

A.T.c«  22    Aircraft  landing  on  foreign  soil  and  intended  to 
b^  taken  out  of  the  country  shall  have  the  benefit,  as  well  as  their 

SXties  ''^''*""  "'  "'""'  °"  '^"^  °'  °"  "  •^^P""*  °' 

A.T.CLE  23.  Aircraft  and  their  equipment  are  provided,  in 
he  country  to  which  they  belong,  by  the  customs  service  and  for 
the  case  of  indirect  imposts  according  to  the  nature  of  the  articles, 
with  an  Identifying  indelible  ink  stamp  or  seal;  and  thus  stamped 
and  sealed  they  shall  be  readmitted  freely  on  returning  to  their 
country.  The  objects  not  marked  shaU  alone  be  subject  to  the 
payment  of  customs  duties. 


S  ft 

1  'I 


248    Re$olutioru  of  the  Itutitute  of  International  Law 

AxTicLK  24.  Acta  performed  on  board  a  private  aircraft 
while  it  is  in  contact  with  the  soil  of  a  foreign  State  come  within 
the  jurisdiction  of  the  courts  of  that  State  and  are  judged  by  the 
laws  thereof,  except  in  the  case  of  mere  infractions  of  the  dis- 
cipline d  professional  duties  of  the  aeronaut;  such  acts  per- 
formed 01.  bv  >rd  of  a  public  aircraft  are  on  the  contrary  removed 
in  principle  from  the  jurisdiction  and  legislation  of  the  territorial 
State. 

Akticle  2S.  Public  aircraft  in  a  foreign  country  have  a  right 
to  the  privileges  of  exterritoriality. 

Abticle  26.  The  authorities  of  the  contracting  States  should, 
in  case  of  landing  or  of  distress  of  an  aircraft,  lend  it  aid  and 
protection;  they  should  instruct  the  population  as  to  the  neces- 
sary measures  in  such  cases. 

Article  27.  Whoever  finds,  on  land  or  at  sea,  an  aerial  wreck 
should  make  a  declaration  thereof  to  the  municipal  authority  of 
the  neighboring  place  or  of  the  first  port  he  enters,  within  twenty- 
four  hours  of  finding  it  or  of  entering  the  port. 

The  wreck,  if  it  can  be  identified,  shall  be  restored  to  its  owner, 
who  shall  reimburse  the  salvor  and  pay  him  a  remuneration  of  five 
per  cent  of  the  value  of  the  wreck.  Otherwise  it  shall  remain  in 
the  hands  of  the  authorities ;  the  domestic  legislation  of  each  State 
determines  the  time  during  which  the  owner  of  the  wreck  can  ef- 
fectually claim  it. 

Abticle  28.  On  the  request  of  the  interested  parties  assist- 
ance should  be  given,  so  far  as  possible,  to  an  aircraft  in  the  air, 
on  land  or  at  sea.  Whoever  gives  assistance  should  receive  reim- 
bursement of  his  expenses  nnd  a  suitable  remuneration. 


Pabt  II.— Wae  * 
Chaptee  I.— The  Theatre  of  Aerial  War 


Article  1.    Belligerent    States   have   the   right   to   carry  out 
warlike  acts  in  any  and  every  part  of  the  atmosphere  above  their 

■  For  this  translation  of  Part  II  we  are  indebted  to  Mr.  J.  M.  Spaight's 
Aircraft  in  War  (London,  1914),  p.  133. 


Appendix  249 

inJ^r  J"''''^.'^",*"  ""y  °"t  hctUe  act.,  capable  of  c.u.- 
mg  the  fall  of  project Je.  or  of  causing  damage  generally,  above 
the  terntone.  of  neutral  State,,  at  whatever  ^ight,  and  al.rin 
^e  neighbourhood  of  these  State,  within  a  radiu!  determi;^  bj 
the  force  of  the  cannon  of  their  aircraft. 

tary  aircraft,  may  not  circulate  above  a  neutral  State  except  with 

forbrfden  to  remain  above  a  neutral  country  within  a  certain  radiu 
of  the  other  beUigerenf.  frontier.     The  circulation  of  aircraft  Z 
w.r  time  „  .ubject  to  the  .ame  re.triction.  a.  during  peace 

Chapter  U.-The  Relations  of  BeUigerenU  "Inter  Se" 

^^  Wlb  2.    Privateering  i.  forbidden  in  aerial  a,  in  maritime 

Belligerent,  may,  however,  incorporate  in  their  military  force, 
private  aircraft  and  their  crew.,  on  condition  that  they  are  placed' 
under  the  control  of  a  duly  commissioned  officer  and  carry  .  dt 
tuictive,  external  .ign  of  their  character.  ^ 

airc^frmrvl'^'''/T"'°"  "'  P'""**^  *''"*^*  '"*«  ™"t"y 
aircraft  may  be  made  during  war  in  the  territory  or  in  the  ter- 
ritorial waters  of  the  State  to  which  they  belong.'^^n  th  territory 
occupied  by  the  troop,  of  that  State,  in  the  opf;  sea,  andT^  the 
atmo.phere  not  situated  above  a  neutral  State  unde;  the  condi 
tu,ns  laid  down  in  the  Hague  Convention  of  October  18.  IWT  rel- 
ative to  the  conversion  of  merchant  ships  into  war-ships. 

The  converted  aircraft  will  preserve  their  military  character 
Juring  the  whole  period  of  hostilities  and  cannot  be 're  on"ert^ 
into  private  aircraft  during  that  period.  converted 

AaricLK  4.    The  terms  of  the  first  section.  Chapter  II.  and  of 

lanrt^  V  '  *^°""™"'«  *»>-  laws  and  customs  oF  war  on 
^d.  I.  Ides  those  expressly  laid  down  in  the  following  article." 
wjil  apply,  as  far  as  possible,  to  aerial  war. 

A.T1CLE  5.    In  accordance  with  the  second  and  third  Declara- 


I 

I 


Li 


i  '\ 


250    Retolutiotu  of  the  Irutiiute  of  International  Law 

tions  of  The  Hague  of  July  29,  1899,  the  diicharge  from  aircraft 
of  projectiles,  the  sole  object  of  which  is  the  diffusion  of  asphyxi- 
ating or  deleterious  gases,  or  of  bullets  which  expand  or  flatten 
easily  in  the  human  body,  is  forbidden. 

Akticlx  6.  The  bombardment  by  aircraft  of  towns,  villages, 
habitations  or  buildings  which  are  not  defended  is  forbidden. 

The  rules  established  by  the  Hague  Conventions  of  October  18, 
1907,  relative  to  sieges  and  bombardments  by  land  or  naval  forces, 
are  applicable  to  aerial  war. 

Akticls  7.  Aircraft  can  only  be  considered  suspected  of 
espionage  if,  acting  clandestinely  or  under  false  pretences  and  thus 
dissimulating  their  operations,  they  obtain,  or  seek  to  obtain,  in- 
formation, above  the  territory  or  territorial  waters  of  a  belligerent, 
or  above  territory  occupied  by  his  troops,  or,  in  the  open  sea, 
above  one  of  his  squadrons  or  ships  of  war,  and,  generaUy,  in  the 
zone  of  his  operations,  with  the  intention  of  communicating  it  to 
the  hostile  party. 

It  is  consequently  a  principle  that  soldiers,  not  in  disguise,  em- 
ployed on  scouting  duty  in  aircraft,  and  individuals  dispatched 
in  aircraft  to  carry  despatches  and  in  general  to  maintain  com- 
munication between  the  various  parts  of  an  army  or  of  a  terri- 
tory, are  not  considered  spies. 

Akticle  8.  The  public  aircraft  of  a  belligerent  State,  thou^ 
not  appertaining  to  the  military  service,  are  liable  to  seizure  and 
confiscation. 

AaTicLE  9.  The  private  aircraft  of  the  enemy  may  be  seized 
by  a  belligerent  above  his  own  or  the  enemy's  territory  or  terri- 
torial waters,  and  above  the  open  sea,  but  they  must  be  restored  at 
the  peace  without  indemnity.  Any  merchandise,  even  belonging 
to  the  enemy,  found  on  board  such  aircraft,  is  not  seizable. 

The  foregoing  dispositions  do  not  modify  the  right  of  confisca- 
tion which  a  belligerent  possesses  in  virtue  of  the  rules  relating  to 
blockade  and  contraband  of  war,  and  generally,  in  the  case  of 
private  enemy  aircraft  performing  hostUe  acts  or  being  employed 
in  a  military  task. 

Article  10.  The  validity  or  nullity  of  the  acquisition  of  neu- 
tral nationality  by  enemy  aircraft  is,  in  accordance  with  the  dis- 
positions of  Chapter  V  of  the  Declaration  of  London  of  February 


Appendix 


251 


aC,  190P,  dependent  on  the  moment  at  which  the  tr»nifer  hu  been 
effected  and  the  conditions  on  which  it  has  been  carried  out. 

AancM  11.  The  fact  whether  an  air-ship  or  aeroplane  it 
enemy  or  neutral  ia  shown  by  the  distinctive  sign  of  its  nationality, 
which  it  has  the  right  to  carry. 

A«Tici.E  12.  When  private  enemy  aircraft  or  public  non- 
military  enemy  aircraft  are  seized  by  a  belligerent,  the  captain 
and  crew,  whether  subjects  of  the  enemy  State  or  of  a  neutral 
State,  are  not  made  priooners  of  war,  but  must  be  left  at  liberty 
under  the  conditions  provided  for  in  Chapter  III  of  the  Hague 
Convention  of  October  18,  1907,  relative  to  certain  restrictions 
upon  the  exercise  of  the  ri^t  of  capture  in  maritime  war. 

ABTICI.E  18.  The  destruction  of  private  enemy  aircraft  or  of 
public  enemy  aircraft  is  only  permissible  under  the  exceptional  cir- 
cumstances of  the  aircraft's  acting  as,  in  fact,  military  aircraft,  or 
resisting  the  legitimate  exercise  of  the  right  of  capture;  and  the 
destruction  cannot  be  carried  out  until  after  a  special  summons  has 
been  made. 

Aeticle  14.  Belligerents  possess  the  right  to  capture  enemy 
aircraft,  private  or  public,  deccending  on  their  territory  whether 
by  accident  or  forced  descent. 

Aeticle  15.  The  private  aircraft  of  a  belligerent  which  hap- 
pen  to  be  within  the  enemy's  territory  at  the  outbreak  of  hostili- 
ties, and  aircraft  which  quitted  their  last  port  of  departure  before 
the  commencement  of  hostilities  and  arrived  within  hostUe  territory 
without  knowing  of  the  existence  of  hostilities,  can  only  be  seized 
under  the  conditions  named  in  Article  9  if  no  "days  of  grace" 
have  been  granted  for  their  departure,  or  if,  such  "  days  of  grace  " 
having  been  granted,  advantage  has  not  been  taken  thereof. 
"  Days  of  grace  "  cannot  be  granted  to  private  enemy  aircraft  the 
construction  of  which  shows  that  they  are  intended  to  be  trans- 
formed into  war  aircraft. 

Private  enemy  aircraft  which  quitted  their  last  port  of  depar- 
ture  before  the  commencement  of  hostilities  and  are  encountered,  in 
space,  ipiorant  of  the  existence  of  hostilities,  may  be  seized  like  all 
other  private  enemy  aircraft. 

^Public   non-military   aircraft   may   receive   the   benefit   of  the 
days  of  grace  "  in  the  same  circumstances  as  private  aircraft. 


5 

i 


252    Resolutiont  of  the  Institute  of  International  Law 

Akticlx  16.  Aircraft  charged  with  scientific  or  philanthropic 
miHiom  are  exempt  from  seizure,  under  the  conditions  named  in 
Chapters  I  and  II  of  the  Hague  Convention  of  October  18,  1907, 
relative  to  certain  restrictions  on  the  exercise  of  the  right  of  cap- 
ture in  maritime  war. 

Abticlk  17.  As  regards  the  treatment  of  sick  and  wounded, 
the  provisions  of  the  Hague  Convention  of  October  18,  1907,  for 
adaptation  of  the  principles  of  the  Geneva  Convention  to  maritime 
war,  are  applicable  also  to  aerial  war,  so  far  as  possible. 

The  wounded  and  sick  soldiers  of  a  belligerent  deposited  by  air- 
craft upon  a  neutral  State's  territory  with  the  consent  of  the  local 
authorities,  must,  in  default  of  an  arrangement  to  the  contrary  be- 
tween the  neutral  and  the  belligerents,  be  guarded  by  the  neutral 
State  so  as  to  prevent  their  taking  part  again  in  the  operations  of 
the  war.  The  expenses  of  maintaining  them  in  hospital  and  of 
interning  them  will  be  borne  by  the  State  to  which  the  wounded  and 
sick  belong. 

ABTICI.X  18.  An  army  which  invades  or  occupies  a  hostile  ter- 
ritory may  seize  aircraft  of  enemy  nationality,  even  if  belonging 
to  private  persons;  but,  in  this  latter  case,  the  aircraft  must  be 
restored  and  indemnities  for  them  regulated  at  the  peace,  in  con- 
formity with  Article  03  of  the  Hague  Regulations  of  October  18, 
1907,  on  the  laws  and  customs  of  war  on  land. 

Chaptzx  III. — The  RelatUmt  of  NeutraU  and  BelUgerentM 


Akticle  19.  The  military  aircraft  of  the  belligerents  which 
enter  neutral  territory  must  not  remain  there  more  than  twenty- 
four  hours,  unless  prevented  by  damages  or  the  state  of  the  at- 
mosphere. 

If  aircraft  of  the  two  belligerent  parties  happen  to  be  simul- 
taneously at  the  same  place  in  this  territory,  at  least  twenty- 
four  hours  must  be  allowed  to  elapse  between  the  departure  of  the 
aircraft  of  the  one  belligerent  and  the  aircraft  of  the  other.  The 
order  of  their  departure  is  determined  by  the  order  of  their  ar- 
rival, unless,  in  the  case  of  the  aircraft  arriving  first,  there  is  an  ad- 
missible reason  for  prolonging  the  stay. 

Belligerent  aircraft  must  not  do  anything  within  neutral  ter- 


Appendix  ^50 

ritory  which  might  augment  their  military  power,  «,d  their  pre- 
ence  mu,t  no  m  .ny  w.y  prejudice  the  interest,  of  the  neutrd 
State;  the  only  act.  which  they  may  perform  are  tho.e  which  hu- 
721  ""»°t /-b'd  and  which  are  indi.pen.aWe  for  enabling 
them  to  reach  the  nearest  point  in  their  own  country  or  in  a  coun- 
try aUied  to  them  during  the  war. 

The  principle,  of  the  Hague  Convention  of  October  18,  1907, 
relating  to  neutral  right,  and  dutie.  i„  maritime  war,  are  generally 
applicable  to  aerial  war.  generally 

A.T,cL.  20  The  aerial  navigation  of  neutral  countrie.  i. 
rtt'^v '"        l"^'  °^  '^'  *tn'°-Phere  dominating  the  territory 

fiL^":- Trrir ^"  -  ^*'''"  •  -^^^ »'  "•«>«  »-» 

nrnVKV^*  \\^t  '""  f  ^"'^  '^"i'^"'  "«■"•'*  di.obeying  thi. 

them  '^  ''  "P""'*^  "  "°*  proved  .Jain.t 

A.TICLK  21.    In  ca.e  of  a  blockade  with  an  effective  area  of 

more  than  11.000  meter,,  neutral  aircraft  may  not  approach  any 

dr      ""' ''''" ''  ""^  **""  "'*^  °"*'" '"""  ^''•^  '"'"y'- 

Neutral  aircraft  in  a  blockaded  port  may  not  leave  it. 

arvlS'l'^o       Ttf"?  "7  *''  Declaration  of  London  of  Febru- 
ary 26,  1909,  a.  to  blockade,  are  applicable  in  aerial  a.  in  maritime 

confi'^"!!;''  ^u    i'"''"  instituting  contraband  of  war  may  be 
confiscated  on  board  neutral  aircraft  as  well  as  on  board  enemy  air- 

Article  23.  As  regards  the  determination  of  articles  consti- 
tuting contraband  of  war  and  the  conditions  in  which  th^  majt 
seized  the  rules  laid  down  in  the  Declaration  of  London  of  FeW 
ary  26,  1909.  Chapter  II,  shall  be  followed. 

whict  mav  L!.*" ,  "^T*  ^  "*"'"  '''  "  <^'"«^i«on*>  contraband  " 
wh^h  may  be  declared  confiscable  if  destined  for  the  use  of  the  armed 

acces^ri^":^;-?'  ""r'''  *'^''"  '''*'"'^*'^^  ''""'P""-*  P"*'  -^ 

craftZes  "  '"''  "'  *'^  '^"''  ^^*'-*-  °'  •- 

Abticle  25.    The  proviMons  of  Chapter  III  of  the  Declaration 


i 


2fi4    Retolutiotu  of  the  Iiutitute  of  Intemationai  Law 

of  London  of  February  26,  1909,  relative  to  unneutral  Mnriee  at 
■ca,  ihall  be  applicable  to  neutral  aircraft. 

There  ii  a  presumption  of  unneutral  Mrvicc,  juitifjring  capture, 
againat  neutral  aircraft  circulating  above  belligerent  State*. 

AaricLC  26.  Neutral  aircraft  may  be  destroyed  under  the 
same  conditions  as  belligerent  aircraft. 

AsTKLX  27.  Neutral  aircraft  descending  in  belligerent  terri- 
tory, owing  to  accident  or  "  forced  descent,"  may  be  seiied  and 
confiscated  in  the  cases  and  subject  to  the  conditions  specified  in 
the  preceding  articles. 

Akticlx  28.  The  subjects  of  a  neutral  State  shall  be  treated 
like  those  of  the  belligerent  States  as  regards  aircraft  belonging 
to  them  in  the  territories  of  the  belligerents. 

Chaptik  IV. — Aerial  Prixt$ 


» 


Abticle  29.  The  adjudication  of  aerial  prizes  is  subject  to 
the  same  rules  as  the  adjudication  of  maritime  prizes. 

AsTicLK  80.  If  the  seizure  of  an  aircraft  or  its  cargo  has  not 
been  upheld  by  the  prize  courts,  or,  if,  without  the  matter  being 
brought  before  the  ''ourts,  the  seizure  has  not  been  maintained,  the 
parties  interested  have  a  claim  to  damages,  unless  there  has  been 
sufficient  justification  for  the  seizure  of  aircraft  and  cargo. 

In  the  case  of  destruction  of  an  aircraft,  unless  the  captor  can 
show  that  he  acted  in  the  circumstances  referred  to  in  Article  18, 
he  is  bound  to  indemnify  the  persons  interested,  and  it  is  not  nec- 
essary to  inquire  whether  the  seizure  was  valid  or  not. 


Pakt  III. — Captive  Aircsaft  and  Uniiamnzd  Fbee  Aibcbavt 


Chaftee  I. — Captive  Aircraft 


Aeticlz  1.  Captive  aircraft  having  in  general  the  nationality 
of  the  sovereign,  legitimate  or  actual,  of  the  territory  to  which 
they  are  attached  arc,  in  time  of  peace  as  well  as  in  time  of  war, 
placed  under  the  laws  and  jurisdiction  of  that  territory. 

In  exceptional  cases  where  they  have  a  different  nationality, 
they  should  be  subject  to  the  following  rules: 


Appendix  2S& 

mere  «f ration,  of  duc.phne  or  profeMionid  duty  of  the  wron.ut! 
J^J^T^  .      '^'''  ^'"^  •*'°"»'  '"^"'  *»•"'  commander  hM 

th.!'J!^  •«=»•  Prfonned  in  the  c.r  of  .  c.ptire  aircraft  above 
the  open  «.  or  terntonal  water,  of  a  State  fall  within  the  juri.- 

fhftTf  th        T?'  \"'u'"  °'  '""^  ~""*'^  »'  ^'^  aircraft 'orof 
that  of  the  ve.«.l  to  which  it  i.  at  a.hed  according  a.  the  aircraft 

rr"f  t^hl  "IZ^^  ^''-'  "^"^  *°  '"^  P"''""  -  P--«  'Har- 

Abticm  a.    In  time  of  peace,  captive  ai-craft  that  are  not  na- 

Z  fK      'rf  '"■"*!*  """°*  "^*''°"*  .i-thori.ation  in  writing 

f^^Vork.  "*^  **  '"'*'""'  ''"*'''"  *"'*^  "»»*"  «' 

10.000  meter,  of  the  fort..ad  work,  of  neighboring  State.        'out 
permiHion  m  writing  from  tho.e  State.. 

In  time  of  war.  r.ptive  aircraft  of  neutral,  cannot  be  locateu 

Whgewnt  State..    But  the  captive  aircraft  of  the  belligerent,  have 
the  nght  to  operate  over  their  territory  up  to  the  very  boundary 
of  the  neutral  State,.     Belligerent  captive  aircraft  cannot  be  in 
.tailed  on  or  even  pa.,  over  the  territory  of  a  neutral  country. 

free  ^crlJt  '  **"""  *'''*  *"*  '°*"'  '^'^  ^  *"**«^  " 


Craftu  U.~Unmanned  Free  Aircraft 

A.TICL.  4.  Unmanned  free  aircraft  which,  under  the  name  of 
sounding  balloon.,  have  an  exclusively  .cientiflc  purpo.e  may  in 
time  of  war  a.  well  a.  in  time  of  peace  freely  circulate  in  aU  part, 
of  the  atmo.phere. 

The.e  aircraft  have,  attached  to  their  car.  a  plate  giving  their 


if 


1 


259    BetoliUiotu  of  the  Institute  of  International  Lam 

nmmt,  thdr  donkilc  mmI  the  name  aiid  AddrcM  of  their  owner;  thej 
bear  on  •  certain  place  on  their  coTcring  a  flag  of  a  particular 
•  shape  indicating  their  nationality. 

Everj  State  mtut  mc  to  it  that  ite  inhabitants  respect  the 
sounding  balloons  that  ground  on  its  tcrritorj  or  are  found  at 
sea,  and  that  they  answer  the  list  of  questions  found  in  the  car  and 
send  them  back  promptly  to  the  writer;  customs  formalities  shall 
be  siroplifled  as  far  as  possible  with  regard  to  such  aircraft. 

It  is  desirable  that  the  States  form  an  international  union  whose 

bureau,  established  at  (Strassburg),  shall  be  charged  with 

regulating  the  use  and  status  of  sounding  balloons  and  with  eentralix- 
ing  the  information  collected. 

Abticlc  S.  Unmanned  free  aircraft  of  which  one  of  the  bel- 
ligerents makes  use  in  time  of  war  for  the  conduct  of  its  operations 
may  be  flred  upon  by  the  other  in  those  parts  of  the  atmosphere 
where  acts  of  hostility  are  authorized. 

But  if  these  aircraft  escape  the  Are  of  the  belligerent  troops, 
neutral  States  above  which  they  pass  have  no  ri^t  to  touch  them 
at  any  height  whatever. 

In  case  aircraft  of  this  kind  fall  upon  the  territory  of  a  neu- 
tral State  or  are  found  at  sea  by  a  subject  of  a  neutral  State,  the 
authorities  of  thai  State  should  keep  them  until  per?e,  together 
with  the  dispatches  and  carrier  pigeons  found  upon  them. 


CODE  ON  AIRCRAFT  IN  WAR  PROPOSED  BY  MR. 
VON  BAR ' 


Abticle  1.  In  general  it  is  forbidden  to  make  use  of  air-ships, 
balloons  or  aeroplanes  as  means  of  destruction  or  of  combat. 

AiTiciE  2.  Nevertheless  (a)  enemy  military  air-ships,  bal- 
loons or  aeroplanes,  if  flred  upon  from  the  land  or  from  shipboard, 
mny  defend  themselves; 

(b)  Combats  in  the  air  are  permitted: 

( 1 )    If  there  is  a  naval  engagement  and  the  air-ships,  balloons 

» Anituairt,  voJ.  94,  p.  133.    See  antt,  p.  Ill, 


Appendix 


U7 


or  Mroplue.  are  not  diitant  more  than  twenty  kUometen  from  tbt 
place  of  engagement : 

(2)    In  the  territorial  water,  of  belligerent,  within  a  son«  of 
blockade ; 

A.TICL.  8.  It  ,.  forbKlden  to  capture  in  the  air  enemj  priraU 
air.d»p,,  etc..  except  when  they  roluntarUy  enter  the  aerial  ,p»et 
•bore  the  territory  of  the  adrer.ary  or  in  a  .one  of  WockadTor 
in  caw  of  contraband  under  Article  4. 

AmncL.  4.  Likewiw  it  i.  forbidden  to  wl,e  and  eonllMate  neu- 
tral •.r-.h.p.  or  the,r  cargoe.  a.  contraband,  excep'.  when  they  are 
bnnging  ad  directly  to  a  blockaded  coa.t  or  port  or  to  the  enemy 
•rmy  or  fleet  in  the  theater  of  war.  ^ 

A.TICL.  5.  In  the  caw.  excepted  by  Article.  4  and  6  the  rule, 
for  maritime  pn».  .hall  be  applied. 

A.Tic«  6.  It  i.  forbidden  enemy  private  air-.hip.  to  p«ie. 
trate  into  the  aerial  .pace  of  the  adversary  State. 

Aeticl,  7.  Belligerent,  map  forbid  neutral  air-.hip.  to  enter 
the  aenal  apace  above  their  territory. 

AmncL.  8.    It  u  forbidden  to  fire  upon  neutral  air-.hip.  with- 


REGULATIONS  GOVERNING  THE  RELATIONS  BETWEEN 

THE  CARNEGIE  ENDOWMENT  AND  THE  INSTI 

TUTE  OF  INTERNATIONAL  LAW ' 

A.TICL.  1.  The  In.titute  of  International  Law,  confirming 
lU  re.olution  .idopted  at  Chri.tiania,  under  date  of  Augu.t  26 
1912.  accept,  the  duties  of  general  adviser  to  the  Diri.ion  of  In- 
ternational Law  of  the  Carnegie  Endowment.  In  con.equence  of 
tJu.  acceptance,  it  appoint,  a  .pecial  Con.ulti,  ve  Committee  to 
which  It  delegates  the  performance  of  the  .aid  iutie..  under  the 
condition,  .tated  below. 

•  Adopted  by  the  Institute  August  8,  1913.    Jn»uair0,  toI.  M,  p.  flM. 


n 


1 


w 


258    RetdutioM  of  the  Inttitute  of  Intemational  Law 

Akticu  2.  The  Coniultative  Committee  for  the  Cftrnegie  En- 
dowment shall  consist  of  nine  members,  together  with  the  president 
of  the  Institute  et  officio,  and  the  secretary  general  of  the  Insti- 
tute, who  shall  act  as  president  of  the  Committee. 

Aa-ncuE  8.  Of  the  nine  members  first  elected  one-third  shall 
retire  from  office  at  the  end  of  two  sessions,  one-third  at  the  end 
of  four  sessions,  and  the  remainbg  one-third  at  the  end  of  six  ses- 
sions, the  order  of  their  retirement  to  be  determined  by  the  draw- 
ing of  lots  immediately  after  the  initial  election,  and  the  Institute 
shall  proceed  to  fill  their  places.  They  shall  not  be  eligible  for  im- 
mediate reelection.  Members  elected  at  any  session  after  the  first 
shaU  serve  for  two  sessions  and  shall  not  be  eligible  for  immediate 
reelection.  If  for  any  reason  a  member  should  retire  before  the 
expiration  of  his  term,  the  Committee  shaU,  at  the  next  following 
session,  proceed  to  fill  his  place  for  the  remainder  of  his  term. 

AaxicLB  4.  Meetings  of  the  Committee  shall  be  called  by  the 
president  upon  request  of  the  Director  of  the  Division  of  Interna- 
tional Law  of  the  Carnegie  Endowment. 

Its  resolutions  shall  be  adopted  by  an  absolute  majority  of  the 
members  present,  the  quorum  necessary  to  render  the  deliberations 
valid  being  six  members. 

The  Committee  may  ask  the  Director  to  be  present  at  a  meet- 
ing to  explain  matters  relating  to  questions  on  the  program;  for 
his  part,  the  Director  may  request  permission  to  be  present  at  the 
meetings  of  the  Committee. 

AkticucS.  The  Committee  may  be  consulted  upon  all  ques- 
tions pertaining  to  international  law,  which  are  of  a  nature  to  con- 
tribute to  its  theoretical  and  practical  development,  as  well  as  to 
its  strict  observance.  In  this  connection,  it  may  make  such  sug- 
gestions as  it  shall  consider  expedient  to  the  Executive  Committee 
of  the  Carnegie  Endowment. 

AXTICI.E  6.  Depending  upon  the  case,  the  Committee  shall  give 
its  opinion  directly  to  the  Carnegie  Endowment  or  shall  decide 
whether  there  is  occasion  to  consult  the  Institute,  either  in  plenary 
session  or  in  administrative  session. 

Article  7.  The  President  of  the  Committee  shall  communi- 
cate the  resolutions  adopted  by  it  to  the  Carnegie  Endowment 
through  the  Director  of  the  Division  of  International  Law.     At 


Appendix 


250 


each  session  the  secretary  general  shall  give  an  account  of  them  in 
his  report  to  the  Institute. 

If,  at  the  request  of  the  Committee,  a  question  has  been  referred 
to  the  Institute,  the  secretary  general  shall  communicate  the  res- 
olution adopted  to  the  Carnegie  Endowment. 

Ahtici,e  8.  The  expenses  incurred  by  the  meetings  of  the  Com- 
mittee, including  the  traveling  and  hotel  expenses  of  the  members, 
shall  be  borne  by  the  Institute. 


■li 


INDEX 


African  slave  trade,  94,  III 
Aircraft,  31,  32,  16S,  170,  191,  343,  i56 
Aliens,  88,   WA,   159 
Allegiance,  oatli  of,  35,  193 
Anarcliism,   103 
Angary,    154 
Arbitral  procedure 
project    and    report    of   Mr.    Gold- 

srlimidt,  205 
regulations  of  tlie  Institute,  1,  17 
supplementary    observations    of    Mr. 

Goldschmidt,  939 
Arbitration,     internntional     (see     also 

Arbitral    procedure),    13,    16,    87, 

161,  163 
ArmisUces,  16,  39,  46,  195,  196 
Artistic      property — revision     of      the 

Berne   Convention,   1 15 
Asylum,  56,  145,  148.  153,  154,  155 
Armed   force   of   belligerents,  38,   175, 

176 
Austria,  Declaration   of  1&:''6,   14 

von  Bar's  code  on  aircraft  in  war,  356 
Belligerent   personnel,    176 
Belligerents 
qualiflcations  of,  10,  38,  177 
relations  between,  13,  164 
Belligerent    vessels    in    foreign    ports, 

status   of,   143 
Belligerent  war-ships  in  neutral  ports, 

154,    155 
Berlin  conference,  93 
Berne    C  mvention     on     literary     and 

artistic   property,   revision  of,   115 
Bloclcade.   15,  52,  7(i",  77,  158,  !G3,  167, 

179,  180,  188,  195 
Blockade,  pacific,  69 
Bombardment,  ;«,  131,   179 
Boundaries,    78 
Bnissels,  Declarntion  of,  7 
Brussels,  general  act,  94,  111 
By-laws  of  the  Institute,  xxi 

Cables,  34,  36,  161,  188 

Canal,  Suez,  23 

Capitulations,   39.    195 

Capture,    175,    181,   195 

Carnegie  Endowment  for  Interna- 
tional Peace,  857 

Cartels,    40,    185 

Citirj-nship  (nationality),  conflict  of 
laws,    133 


Civil  war,  108,  157,  159 

Coastal   Ashing   boats,   185 

Coastwise  trade,  79,   185 

Collisions,  marine,  83 

Compromit  clause,  16 

Communication  of  foreign  laws,  67,  70 

Compulsory  service,  35,  191 

Confiscation,    175,    198 

Con.stitution  of  the  Institute,  xvi 

Consular    immunities    and     privileges. 

61,  123,  145,  150 
Continuous  voyage,  53 
Contraband,   15,  51,   76,   129,   141,   183, 

198 
Contributions,  10,  37,  132,  180 
Conventions    between    belligerents,    39, 

Conversion    of 

merchantmen,    176 

war-ships,    176 
Corresponclence,  postal,  188 
Courts,    ci>ni{>etence    in    suits    against 
foreign    States    or   sovereigns,   90 
Crews,  ships',  status  in   foreign  ports. 

Crimes  committed   on   shipboarJ,   114, 

147,    151 
Criminal  law  of  war,  13,  21 

Dead,  treatment  of,  31,  194 

Declaration  of  war,  163 

Desertion  of  seamen,  44,  149,  152,  153 

Destruction  of  prizes,  55,  178,  198,  300 

Devastation,  11,  33,  178 

Diolomatic    immunities,   119,   130 

Embargo.   153,   154 

Emigration,    137 

Enemy  character,   186 

Enemy  property  in  naval  war,  180 

Exequatur,    134 

Expatriation,    133 

Expulsion,  88,   103 

Exterritoriality,   131 

Extradition,  43,  103,  106,  108,  110,  149 

Fauchille's  code  on  aircraft,  243 
Federal    States,    responsibility    of,    160 
Fishing  vessels  in  naval  war,  185 
Flag   (see  also  Parlementaires) 

improper  use  of,  29,  177,  191 

use  for  merchant  ships,  135 
Foreign  laws,  communication  of,  67,  70 


203 


264    Reaolutiotu  of  the  Irutitute  of  IntematioruU  Law 


h 


(Jeneral  >Ter«fe,  M 
Geneva  Convention 

application  to  naval  warfare,  15S 

penal  sanction,   11 T 
GoldKhmidt's   protect   of   and   report 

Xn  a  code  of  arbitral  procedure, 

supplementarjr  observations,  839 
Guides,  191 

Hague  Court  of  Arbitration,  163 
Hospital  personnel,  30,  Si,  190 
Hospital    ships,    183 
Hostages,  193 
Hostilities 

laws  and   customs   of  war   on   land 
(Oxford    Manunl),  35 

laws   of   naval    war    (Oxford   Man- 
ual),  174 

opening  of,   163 
Humanity,  11,  31,  43,  88 

Immigration,  88,  103,  13T 
Immunities 
consular,   123 
diplomatic,    119 
parlementaires,  33,  191 
sovereign,   90 
suspension  of,   186 
Institute  of   International  Law 
by-laws,  xxi 
constitution,  xvi 
historical  sketch,  xi 
personnel,  xxxii 

relations   with   Carnegie  Endowment 
for  International  Peace,  3iT 
Insurance,  marine,  63,  65 
Insurrection,  103,  I5T,  159 
International  bureau  for  the  publica- 

Uon  of  treaties,  100,  101 
International   commissions   of  inquiry, 

161 
International  Priie  Court,  23 
International    rivers    and    streams,    63, 

78,    168 
International    tribunals    (see   also   Ar- 
bitral procedure),  163 
International    Union    for   the   Publica- 
tion of  Treaties,  97 
International    Union   for  the   Suppres- 
sion of  the   Slave  Trade,   111 
Internment,  38,  40,  154,  192,   194 
Italy,   Declaration  of   1866,   14 

Kongo  River,  63 

Land  warfare   (see  War  on  land) 
Laws,  communication  of  foreign,  67,  70 
License,    186 

IJterary     property— revision     of     the 
Berne  Convention,   115 


Mail  boaU,  48,  149,  188 

Manuals  of  warfare  (see  Oxford  Man* 

uals  of  warfare) 
Marine  coHisions,  83 
Maritime   law   and   marine  Insurance, 

69,  65 
Maritime  liens,  66 
Maritime  slave  trade,  93,  111 
Means  of  injuring  the  enemy,  98,  99, 

33,  1T7 
Medical    personnel   of   enemy   veisels, 

190 
Members  of  the  Institute,  xxxii 
Merchant   ships,   135,   143,   150,   187 
Military  necessity,  26,  180 
Military  occupation,  11,  29,  34,  195 
Mines,  166,  178,  179 

NaUonaiity 
conflict  of  laws,  133 
of  merchant  ships,  50,  135 

Naval    war 
application  of  principles  of  Geneva 

Convention,   156 
bombardment  of  open  towns,  131 
International   Prise  Court,  22 
opening  of  hostilities,  154,  163,  187 
prises,  45,  57,  71,  141 
Oxford    Manual,   174 
private  property  In,  14,  15,  46 

Neutral  rights  and  duties,  40,  41,  157, 
162,  166,  167 

Neutral  States  in  naval  war,  19,  114, 
155 

Neutral  waters,  47,  155,  163 

Non-combatants,  29 

Occupation    (see    also    Military   occu- 
pation), 86 
Official   dispatches,   131,  169 
Opening  of  hostilities,  163,  187 
Oxford    Manual   of   land   warfare,  26 
Oxford  Manual  of  naval  war,  174 

Parlementaires,  33,   191 

Parole,  40,  41,  193 

Passengers,    190 

Peace,  treaty  of,  200 

Penal    sanction    of   laws   of   war,   41, 

117,  168,  301 
Pillage,  33,  178,  194 
Pilots,  56,  61,  191 
Poison,  29,  103,  177 
Political  offences,  44,  103,  148 
Postal   correspondence,   181,   188 
Postal  service,  150 
Preemption,  130 
Prisoners  of  war,  19,  31,  38,  56,  60,  143, 

165,  189,  190,   193 
Private  property  at  sea,  14,  15,  46,  174 
Privateering,   15,  46,   146,   177 


Index 


M5 


Priae 

deflnltion,  175 

regulations,   44,  71,   141 
Priie  Court,  International,  99,  74 
Priae  eourta,  47,  71 
Priae  procedure,  47,  74,  197,  199 
Priaea  In   neutral  ports,  46,   156 
Property    in    naval    war,    enemy,    14, 

Property  in  occupied  territory.  36 
Protectorates,   87 
Prussia,  Declaration  of  1866,  14 
Public  fchlp,  definition,   174 
Pursuit  at  sea,  114,  144 

Quarantine,  81 
Quarter,  3U,  178 

Recapture,  77,  199 
Recognition  of  insurgents,  148 
Ricutil    inUrnatioital    dtt    traiUt,   98, 

99.    101 
Red  Cross,  90,  31,  »4,  183 
Religion,  respect  for,  33,  36,  88,  191, 

180,  184,  190 
Reprisals,  10,  49,  87,  104,  144.  143 
Requisitions,  10,  37,  132,   180,   191 
Resistance  to  search,  76,  77,  146 
Responsibility  of  States  to  aUens,  149 
Retorsion,   104,   143 
Riot,   149 
Rivers  and  streams.  International,  63. 

78,  168 
Russia,  war  of  1877  with  Turkey,  17 

Safe^onduct,  186 

St.  Petersburg,  Declaration  of,  19,  30 

Sanitary  service,  30,  33,  183,  190 

Search    (see   Visit   and  search) 

Seiture,  174,  181,  197 

Sequestration,  69,  130 

Ships    and    crews,    status    In    foreisn 

ports,  143  " 

Shipwrecked,   193,   194 
Ship's   papers,  40,  41,  44,  48,  60,   112, 

197 
Sick  and  wounded  (see  also  Ko&pital 

Ships),  30,  33,  41,  180,  193 
Slave  trade,  88,  93,  HI 
Slavery,  88 
Sovereigns,  suits  against  foreign,  90 


Spies,  31,  164,  191 

States,   suits   against    foreign,   90 

Stopping  (see  also  Visit  and  search), 
47,  181 

Straits,  114,  168 

Streams  and  rivers,  63,  78,  168 

Sues  Canal,  93 

Suits  against  foreign  States  or  sov- 
ereigns, 90 

Suspension  of  arms,  196 

Telegraphs  (see  also  Wireless  teleg- 
raphy! Cables).  24,  37,   184 

Territorial  waters,  113,  144,  169,  174, 
194 

Theater  of  war,   174,  186 

Torpedoes,  167,  178 

Transfer  to  a  neutral  flag.  187 

Transport  service,  130,   143 

Treachery,   29,    177 

Treason,  33,  103,  191 

Treaties,  64,  93,  97,   171 

Tribunals  (see  Arbitral  procedure;  In- 
ternational tribunals) 

Turkey 
use  of  crescent  for  red  cross,  20 
war  of   1877  with   Russia,   17 

Unneutral  service,  42,  76,  77,  186 

Vessels  in  foreign  ports,  status,  143 
Visit  and  search,  14,  16,  46,  48,  76,  96, 

112,  146,  181,  184,  186,  194 
War    (see   also    Naval   war;    War  on 
land) 
effect  on  treaties,  171 
War  of   1877,   Russo-Turkish.   17 
War  nn    Innd 
Declaration  of  Brussels,  7,  19 
Geneva  convention,  20 
insurrection,  157,   159 
opening  of  hostilities,  163 
Oxford  Manual,  24 
War-ships 
conversion,    176 
definition,   144,   174 
personnel  of,   176.   189 
rights  and  duties  of  belligerents  le- 
garding,  153,  180 
Washington,  Rules  of  Treaty  of,  12 
Wireless  telegraphy,   164,   186,  191 


